4/2551 Thailand Supreme Court Opinion 106 (No. 2102) 2008
Mrs. Boonchua Maneekao vs. Ms. Ubonrat Thoyam

Re: Thailand Land Law, Estate Law

Therefore, after the disputed home was constructed, Mr. Vinai moved in as owner from 2532 B.E. (1989 A.D.) and the defendant had no part in providing funds for the construction. Therefore, it is not acknowledged that the defendant is co-owner of the disputed home, and the fact that the defendant’s name appeared as owner (in the house registration document) after the death of Mr. Vinai does not mean that the defendant is the owner of the disputed home. Therefore, the disputed home is the separate property of Mr. Vinai and an asset to be inherited by the plaintiff, the rightful heir under Thailand land law.

In regard to the two guns, it has been acknowledged from the beginning that the defendant and Mr. Vinai lived together without registering their marriage, and therefore the two guns are not considered marital property. Moreover the defendant could not provide evidence that the defendant had part in the funds used to purchase Mr. Vinai’s guns. Hence, the defendant is not co-owner of the two guns, and the two guns are the separate property of Mr. Vinai and an asset to be inherited by the plaintiff, the rightful heir.

The next issue is to determine if the will, in which the defendant claimed that Mr. Vinai prepared for the transfer of the house, including the land and all assets in the home to the defendant, is null or not. The defendant signed her name in the will as a person who received the will, not as a witness. The defendant therefore is not prohibited from receiving the assets according to paragraph one, section 1653 of the Civil and Commercial Code.

A holographic Thailand Last Will and Testament entirely written by the testator according to section 1657 of the Civil and Commercial Code has an important principle: The contents in their entirety must be handwritten by the testator and prepared entirely by the testator with no other persons participating. Also, there is no need for witnesses in the making of the will. The law requires that the testator write with his own handwriting all contents in the will, state the day, month, and year and sign it by himself. This type of will is different from a typewritten will.

Even though the testator is the person who types the will in its entirety, if there are no witnesses present in the making of the will and dissension arises to the effect that another person typed the will or the typed contents do not reflect the intention of the testator, it is difficult to prove that the testator typed the will in its entirety himself. Therefore, a handwritten will by the testator must be handwritten in its entirety and cannot be typed in any instance.

Mr. Vinai, the testator, did not write the entire will in his own handwriting, but used a typewriter instead. Therefore, the will does not conform to the standard for wills and the provision under section 1657, and is therefore null according to section 1705 of the Civil and Commercial Code.

The will is also not a general type of will with witnesses to the making of the will according to section 1656 of the Civil and Commercial Code because paragraph one of section 1656 states that the testator must sign his name in the presence of at least two witnesses, and the two witnesses must sign their names certifying the signature of the testator at that time.

However, the facts appear that Mr. Vinai signed the will on 6 May 2533 B.E. (1990 A.D.) with Mrs. Boonchua Maneekao, the plaintiff, and Mr. Soporn Maneekao, the authorized representative of the plaintiff, signing as witnesses on a later date, namely 22 May 2538 B.E. (1995 A.D.), not at the time of Mr. Vinai’s making the will. This conflicts with the provisions under section 1656 and is null under section 1705.

The will is therefore null, and all of Mr. Vinai’s property shall not be transferred to the defendant, but shall be transferred to the rightful heir, namely the plaintiff. The plaintiff is entitled to file a legal action for the return of Mr. Vinai’s property which is currently in the defendant’s possession.”