Abstract
Inheritance is regulated in the sixth book of the Civil and Commercial Code and is conceived of as a separate institute. It, among other things , regulates the transmission of the estate of a deceased person after his death, the statutory rights of inheritance, the succession by will, and the administration of an estate . The title to the estate of a deceased person may be derived under a statutory rule or under a disposition made by the deceased.
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Notes
- 1.
These are the only legal titles of succession which are available under Thai private law and it is not possible to succeed under a different title, such as a contract of inheritance.
- 2.
It must be pointed out that according to the Act on Application of Islamic Law in Four Provinces B.E. 2489 (1946) ‘Islamic family law and inheritance shall be applied in the court of first instance in Pattani, Narathiwat, Yala and Satun’ (Section 3).
- 3.
The statutory, testamentary, or contractual right to a share in the estate of a deceased person may be abandoned by renunciation in the lifetime of such person, or forfeited by the committal of certain offences which render the person committing them ‘unworthy to inherit’.
- 4.
On this point, see Stasi (2016, p. 169).
- 5.
The etymological equivalent of the expression ‘heir’, as used in civil law systems, has an essentially different meaning from that which the expression has in English law. Under the English law, the term ‘heir’ is commonly reserved for one who receives real property by action of the laws of intestacy, which operate only in the absence of a valid testamentary disposition. See Garner (2001, p. 400).
- 6.
In this regard, it must be added that an English executor who accepts the office is, as regards the vesting of the testator’s estate, in the same position as a Thai heir. The estate does not become vested in a Thai executor. However, as a Thai executor with full powers of management has complete control of the estate, third parties dealing with him are, as a general rule, as safe as third parties dealing with an English executor.
- 7.
Compulsory portions, though originally prescribed by English law, are now unknown in England. The absolute liberty of testamentary disposition prevails at the present time.
- 8.
Under Roman law, if less than the compulsory portion was left to a statutory heir—who was not declared ‘unworthy to inherit’—he could require the testamentary heirs to make up the deficiency; if the compulsory portion or even a larger share was left subject to any restriction (e.g. the appointment of an executor with managing powers), the statutory heir could at his option claim his compulsory portion free from any restriction in lieu of the benefit intended to be given to him, or abide by the provisions of the will.
- 9.
Effects and interpretation of wills, as well as nullity of a will or of a clause in a will, are governed by the law of domicile of the testator at the time of his death.
- 10.
Accordingly, if the heir disclaims the inheritance, it is deemed to have vested, as from the date of the death of the deceased, in the person accepting it in his place.
- 11.
Prachoom (2015, p. 421 ff).
- 12.
The amounts to be accounted for under the rule stated above are added to the amount representing the net value of the part of the testator’s estate divisible among issue. The statutory portions are then calculated as if the value of the estate was equal to the aggregate amount formed by this addition, and the value of the gifts received by each descendant entitled to a share is deducted from the statutory portion of such descendant; if the value of the gifts received by any descendant exceeds the amount of his portion, such descendant is excluded from the division.
- 13.
On this theme, see especially Jitgaannateegit (1993, p. 89 ff).
- 14.
For a detailed discussion on this point, see Stasi (2016, p. 175 ff).
- 15.
Ibid., p. 176.
- 16.
See Prachoom (2015, p. 447).
- 17.
In this respect, Section 1627 of the Civil and Commercial Code provides that illegitimate children who have been legitimated by their father and adopted children are deemed to be descendants in the same way as legitimate children. It can be argued, a contrario, that illegitimate children who have not been duly acknowledged have no rights of inheritance.
- 18.
Stasi (2016, pp. 172–173).
- 19.
Section 1639 of the Civil and Commercial Code specifies that ‘If any of his descendants is dead or has been excluded before death of the de cujus, the descendants of such descendants shall represent him for the purpose of receiving inheritance and the representation shall take place in this way as regards the share of each person consecutively to the end of the stirpes’.
- 20.
The party to whose estate the renunciation refers must execute the agreement in person, unless he is incapable, in which case his legal representative may act on his behalf; if he is of restricted capacity, the concurrence of the legal representative is dispensed with. If either party is under guardianship, the leave of the court is required; if either party is under parental control, the leave is required unless the parties are spouses or intending spouses.
- 21.
On this point, see in particular Huthakoon (2006, p. 117).
- 22.
See in regard to more comprehensive discussion Prachoom (2015, p. 420 ff).
- 23.
A testamentary disposition executed with the easier formalities allowed under certain special circumstances becomes inoperative after a specified period reckoned from the date at which the special circumstances cease to exist.
- 24.
The fact that the testator refers to a future supplemental direction, which he fails to give before his death, does not render the disposition inoperative, unless it can be shown that this was the testator’s intention.
- 25.
The rule in the text shows that Thai law forbids the granting of a ‘general power of appointment’ but allows the granting of a ‘special power of appointment’ in respect of property bequeathed by will.
- 26.
Generally, a declaration of intention is not voidable on the ground of mistake as to the tenor of the declaration, unless it can be shown that the declarant would not have made it had he known the true facts and given reasonable consideration to the matter; in the case of a testamentary disposition, it is sufficient to show that the testator, being the man he was, would not have made the disposition, had he known the true facts.
- 27.
However, a disposition is not voidable if it can be shown that the testator would have made the same disposition if he had known the true facts.
- 28.
This may in some cases be more convenient for the testator than the revocation of the whole will. The formal requirements are the same as in the case of the renunciation of a statutory right of inheritance.
- 29.
For more detailed discussion on this topic, see Minakanit (2012, p. 336 ff).
- 30.
If the person adjudged incompetent survives the date at which the order declaring him under incompetent ceases to be appealable, the incapacity begins retrospectively from the date of the application, but the will of a person who dies before the order ceases to be appealable is not invalid by reason of the order. The will of a person adjudged incompetent made during the pendency of an application for the removal of the guardianship is not invalid by reason of the existence of the guardianship if the application is successful.
- 31.
This age requirement differs from the legal age at which a person is considered to attain full capacity. A will made by a person who has not attained his fifteenth year of age is void (Section 1703, Civil and Commercial Code).
- 32.
On this point, see Huthakoon (2006, p. 112).
- 33.
This type of will has its roots in classical Roman law. The minimum number of witnesses is, however, as is the case in English, law, two—a less stringent requirement than the Roman one of seven. On this point, see Prachoom (2015, p. 440).
- 34.
For a comprehensive analysis on the subject, see Stasi (2016, p. 174).
- 35.
Prachoom (2015, p. 441).
- 36.
The witnesses must be present during the whole proceedings.
- 37.
Huthakoon (2006, p. 131).
- 38.
In fact, in Roman law, the authorities themselves served as witnesses. On this point, see Prachoom (2015, p. 442).
- 39.
As to declarations by testators unable to speak, see Section 1661 of the Civil and Commercial Code.
- 40.
Prachoom (2015, p. 443).
- 41.
On this theme, see especially Minakanit (2012, pp. 339–340).
- 42.
If a second will, revoking a previous will, is itself revoked, the dispositions of the previous will become operative again, as though they had never been revoked.
- 43.
A holograph will is not revoked by its removal out of the official custody. The fact that a will remains in the official custody on the testator’s death does not prove that such will or the whole of the dispositions contained therein remain unrevoked; the revocation may have been made by a holograph will remaining in private custody, or by a publicly declared will placed in some other official custody. See Minakanit (2012, p. 341).
- 44.
Following the same logic, if several persons are appointed as heirs and the shares given to them, in the aggregate, exceed the whole estate, the shares abate rateably.
- 45.
Jitgaannateegit (1993, pp. 142–149).
- 46.
An example will clarify the point. Assume the testator says: ‘I appoint as my heirs my wife and my three children, A, B, and C; and I direct that one half of my estate is to go to my son A, and that each of my children B and C is to take one quarter’. In the result, the widow takes one-fifth, A takes two-fifth, and each of the two other children take one-fifth.
- 47.
It must be noted that any share in the estate devolving to any heir by virtue of the right of survivorship is, as regards the liability for legacies and testamentary burdens, deemed a separate share.
- 48.
The right to a legacy given to a person who is not living or deemed to be living at the time of the testator’s death, or to a person who is to be ascertained on an event which is to happen after the testator’s death, becomes effective on the birth of the legatee or the happening of the event.
- 49.
If the date precedes the testator’s death, the legacy devolves on the legatee on the date of the death.
- 50.
This modification of the Roman law as to praelegatum is of practical importance. Where the burden is imposed on the heirs generally, it gives the heir to whom the legacy is given an advantage over his co-heirs, but even in a case where there is only one heir who is charged with all the legacies, he derives an advantage from having a legacy given to him. If a testator leaves his estate, worth 80,000 baht, to his heir A and gives a legacy of 60,000 baht to A and another legacy of 60,000 baht to B, A and B are each reduced to 40,000 baht. Under Roman law, the legacy to A would have been deemed part of the inheritance, and B would have taken the whole 60,000 baht, being the only legatee.
- 51.
Where any heir or legatee charged with any legacy cannot or does not in fact accept the benefit conferred upon him, the burden otherwise to be borne by him is charged on the person benefiting in his place.
- 52.
If the testator’s heirs have a claim to the delivery of the specifically bequeathed object, the legatee is entitled to the assignment of such claim; on the other hand, the legatee has no claim in respect of an object specifically bequeathed which, though forming part of the testator’s estate, has to be delivered to another under an agreement for sale made by the testator and binding on the heirs.
- 53.
It must be pointed out that if any claim specifically bequeathed by the testator is satisfied before his death, the legatee is presumed to be entitled to the object delivered in satisfaction of the claim. Where the satisfied claim was a claim for the payment of any money, the legatee is entitled to the sum of money received by the testator, whether the estate comprises cash to the like amount or not.
- 54.
If a charge to which the bequeathed object is subject was vested in the testator at the time of his death, it must be decided from the surrounding circumstances, whether the benefit of such charge goes to the legatee or remains vested in the heir.
- 55.
As regards title and quality, the obligations are the same as in the case of the sale of a generically defined object.
- 56.
Minakanit (2012, p. 341).
- 57.
A person who receives a testamentary gift subject to a burden is in a more favourable position than a person who receives a similar gift by act inter vivos.
- 58.
A direction given by the testator or curator prohibiting the opening of his will is invalid.
- 59.
An executor may also obtain a certificate as to his appointment. Such a certificate has the same effect and is subject to the same rule as a certificate of inheritance. The right is of importance, where executors are appointed in the place of the original executors.
- 60.
A legacy is accepted or disclaimed by a declaration communicated to the person charged with the burden of such legacy.
- 61.
The declaration is preserved by the court and is open to the inspection of any interested party.
- 62.
Similarly, a partial or conditional acceptance or disclaimer of a legacy, or an acceptance or disclaimer made subject to any stipulation as to time is inoperative.
- 63.
The treasury authority who is the statutory heir if no other heirs are in existence, or if all disclaim or forfeit their rights, has no power to disclaim.
- 64.
In such a case, the time for disclaiming runs from the date at which he becomes aware of the true ground of inheritance.
- 65.
Where a disclaimer is avoided, the party who became entitled by reason of such disclaimer must be informed by the court; the act of avoidance must be open to the inspection of any interested party. On this point, see Jitgaannateegit (1993, p. 168).
- 66.
A person who under the will has such a power of appointment may be required by any beneficiary to exercise it within a specified period; if he fails to comply with such requisition, he forfeits the power.
- 67.
The court may decline to make the appointment or may rescind the appointment if the assets are insufficient for the payment of costs.
- 68.
Prachoom (2015, p. 431 ff).
- 69.
The liabilities of the estate comprise in the first place such of the testator’s liabilities as are not extinguished by his death and in the second place all liabilities to which the heirs as such become subject (e.g. funeral expenses, legacies, and testamentary burdens).
- 70.
See Jitgaannateegit (1993, p. 174).
- 71.
The rights and liabilities of the heirs, in respect of their management prior to the date of the order, are determined as follows: in respect of the period preceding the acceptance of the inheritance, the rules as to voluntary services apply; in respect of the period from the date of such acceptance down to the date of the order, the rules as to mandate apply; the heirs are entitled to be reimbursed out of the estate for all outlay incurred in the discharge of the liabilities of the estate, in so far as they can prove that under the circumstances, they were entitled to assume the solvency of the estate.
- 72.
The power to incur liabilities may be extended by the testator so as to make it unnecessary for third parties to inquire whether any particular act is necessary in due course of management.
- 73.
Protective measures may be taken by each executor individually.
- 74.
The rules prohibiting the delegation of powers and imposing the duty to give information and to surrender any benefits arising from the management of the estate are the most important among those referred to in text.
- 75.
Jitgaannateegit (1993, p. 199).
- 76.
Such a person is called ‘possessor of the inheritance’.
- 77.
If the action is brought by any heir as to his share, the possessor must hand over the objects in his possession to all the heirs jointly or lodge them with a public authority for their joint account.
- 78.
A person purchasing the estate or any share therein from the possessor is in the same position in relation to the heirs as the original possessor.
- 79.
As from the commencement of judicial proceedings on the part of the true heirs, his liabilities are determined by the same rules as those regulating the liabilities of the possessor of a thing after the commencement of an action for its recovery brought by the true owner.
- 80.
Huthakoon (2006, p. 169).
- 81.
See Stasi (2016, p. 180).
- 82.
The other co-heirs in such a case have a statutory right of pre-emption.
- 83.
In certain specified events, the assignor remains liable.
- 84.
A debtor cannot satisfy his debt to the estate by setting off a debt owing to him by one of the co-heirs.
- 85.
In so far as any particular co-heir is chargeable with any particular liabilities, he must allow such liabilities to be discharged out of the property apportioned to him on the division of the estate.
- 86.
The directions as to the mode of partition given by the testator may include directions as to particular objects to be taken over by particular heirs in part satisfaction of their respective shares.
- 87.
The decision of such third party is not binding on the heirs, if it is obviously inequitable; in such a case, the decision is left to the court.
- 88.
In this respect, Section 1752 of the Civil and Commercial Code specifies that ‘No action for liability on account of eviction under Section 1751 can be entered later than three months after the date of eviction’.
- 89.
These provisions do not apply to a legatee under a particular title.
- 90.
On this theme, see especially Prachoom (2015, pp. 450–451).
References
Garner BA (2001) A dictionary of modern legal usage. Oxford University Press, Chicago
Huthakoon P (2006) Kam atibai pramuan got mai paeng lae panit wa duay moradok (Civil and commercial law: inheritance). Thammasat University, Bangkok
Jitgaannateegit P (1993) Lak got mai paeng lae panit moradok (General principles of civiland commercial law: inheritance). Nititham, Bangkok
Minakanit T (2012) Got mai beuang ton taang turakit (Principles of Thai business law). Thammasat University, Bangkok
Prachoom C (2015) Gleanings of Thai private law in a Roman and Anglo-Saxon setting: a preliminary exercise in legal history and comparative law, an updated and recast English version of the Thai original. Thammasat University, Bangkok
Stasi A (2016) Elements of Thai civil law. Brill, Leiden and Boston
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Stasi, A. (2016). Law of Inheritance. In: General Principles of Thai Private Law. Springer, Singapore. https://doi.org/10.1007/978-981-10-2191-6_6
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