Last Will and Testament in Thailand

A Last Will and Testament in Thailand (พินัยกรรม – Phinai-kam)  is a legal instrument by which a person (testator) directs the disposition of their estate upon death. Thai succession law allows both testate succession (by will) and intestate succession (in the absence of a will), governed by Book VI of the Civil and Commercial Code (Sections 1599–1755).

Although intestate succession is available by default, the creation of a will offers clarity, particularly where foreign nationals are involved, complex asset structures exist, or the testator seeks to override statutory heirship rules.

II. Testamentary Capacity and Fundamental Requirements

A. Legal Capacity of the Testator (Section 1654 CCC)

A person may execute a will in Thailand if:

• They are at least 15 years old, regardless of parental consent

• They possess mental capacity at the time of execution

• The will is made voluntarily, without coercion, duress, mistake, or fraud

A will made in breach of these capacity requirements is null and void.

III. Forms of Wills Recognized under Thai Law

Thai law provides five distinct legal forms of wills. The choice of form affects validity, admissibility, and the burden of proof in probate proceedings.

1. Ordinary Written Will with Witnesses (Section 1656)

• Most commonly used form

• Must be in writing and signed by the testator

• Requires the presence and signatures of two competent witnesses

• Must be dated

This form does not require notarization but must be executed in strict compliance with witness requirements.

2. Holographic Will (Section 1657)

• Entirely handwritten, dated, and signed by the testator

• No witnesses required

• Must be written in the testator’s own hand—typing or dictated text renders it invalid

While simple, this format is more susceptible to forgery claims and evidentiary challenges.

3. Public Will (Section 1658)

• Oral declaration before a district officer or other competent official

• Recorded by the official in writing

• Requires two witnesses, who also sign

• Carries strong evidentiary weight in probate proceedings

Ideal for persons with substantial estates, foreign interests, or where dispute is anticipated.

4. Secret Will (Section 1660)

• Written by testator (typed or handwritten), sealed and delivered to an official in the presence of two witnesses

• Rarely used due to procedural complexity and judicial skepticism

5. Oral Will in Exceptional Circumstances (Section 1659)

Permitted only when:

• The testator is in imminent danger of death

• No other form is possible (e.g., war, natural disaster)

• Declared in front of two witnesses, who must record and report it immediately

Highly restricted and disfavored due to evidentiary vulnerabilities.

IV. Essential Clauses and Structure of a Thai Will

Minimum Required Components:

1. Declaration of identity and intent

2. Revocation of prior wills (if applicable)

3. Appointment of heirs or legatees

4. Appointment of executor(s)

5. Distribution plan—specific bequests or proportions

6. Signature and date, plus witness attestations (where required)

Additional Provisions (Optional):

• Appointment of guardian for minor children (Section 1585 CCC)

• Funeral instructions

• Conditional or contingent bequests (permitted if not contrary to public policy)

• No-contest clause (not explicitly prohibited but effectiveness is limited under Thai law)

V. Statutory Succession: When No Valid Will Exists

Under Section 1629 CCC, heirs are ranked into six classes, prioritized as follows:

1. Descendants (children, grandchildren)

2. Parents

3. Full siblings

4. Half-siblings

5. Grandparents

6. Uncles and aunts

Each class excludes the next, except that parents always inherit alongside descendants.

Rights of Surviving Spouse (Section 1635 CCC):

• Shares the estate with the applicable heir class

• In certain classes, the spouse is considered an equal heir

• Receives half of community property automatically before inheritance is calculated

If there are no heirs, the estate escheats to the State (Section 1628).

VI. Probate and Judicial Process

A. Initiation of Probate Proceedings

Initiated by the executor or an heir before the Civil Court in the jurisdiction of:

• The testator’s last residence, or

• The location of property, if no Thai domicile

B. Required Documents

• Original will (with Thai translation if not already in Thai)

• Death certificate

• Identification documents of heirs

• Asset inventory (movable and immovable property)

• Proof of relationship (e.g., birth or marriage certificates)

C. Court Orders

The court will:

• Verify the formal validity of the will

• Appoint or confirm an executor or administrator

• Authorize the distribution of the estate

Probate proceedings may be contested, requiring hearings, cross-examination, and evidence submission.

VII. Foreign Wills and Conflict of Laws

Thailand accepts foreign wills under the Act on Conflict of Laws B.E. 2481 (1938). Under Section 37, a will is valid if it complies with:

• The law of the testator’s nationality

• The law of the place where the will was made, or

• Thai law

However, such wills must be:

• Translated into Thai by a certified translator

• Legalized via consular authentication or apostille (Thailand is not a Hague member—apostille not accepted alone)

• Proven authentic during court proceedings

Foreign wills covering Thai immovable property are subject to mandatory rules of Thai inheritance law, regardless of governing law.

VIII. Executor’s Role and Liability

A. Duties of Executor (Sections 1711–1723 CCC)

• Take possession and inventory of the estate

• Settle debts, taxes, and funeral expenses

• Distribute assets according to the will or law

• Submit periodic reports to the court or heirs

B. Personal Liability

An executor may be personally liable for:

• Losses caused by mismanagement

• Failure to disclose estate assets

• Unauthorized asset sales or misallocation

An executor is entitled to reasonable remuneration, unless the will provides otherwise.

IX. Estate Taxation and Fees

A. Inheritance Tax Act B.E. 2558 (2015)

Applies to estates exceeding THB 100 million in total value.

Applies only to natural persons, not juristic entities.

B. Land Transfer Fees (via Inheritance)

Inheritance of land or condominiums requires registration at the Land Office, which charges:

• Transfer fee: 2% of the appraised value

• Specific business tax: not applicable to inheritance transfers

• Stamp duty: may apply in certain asset types

X. Litigation and Disputes

Grounds for Contesting a Will

• Invalid execution (missing signatures, witnesses)

• Lack of capacity or undue influence

• Forgery

• Violation of public policy or legal form

Available Remedies

• Full or partial revocation of the will

• Appointment of court administrator in lieu of an invalid executor

• Injunctions or asset freezes during probate litigation

• Damages claims by disinherited heirs under limited circumstances

XI. Conclusion

The creation of a Last Will and Testament in Thailand allows individuals to exercise precise control over the disposition of their estate. While Thai succession law offers well-defined procedures, strict compliance with formalities, careful planning regarding heirship, and understanding conflict-of-law provisions are critical for enforceability and smooth administration.

Especially for foreign nationals, testators with complex family situations, or those holding immovable property in Thailand, working within the bounds of Thai legal structure ensures the intended outcome and reduces the risk of estate litigation or asset stagnation after death.