Thread: Making a will - Advice please

Two easy questions:

1 - My brother in the UK is the trustee of my UK Will, which involves a trust, and concerned that I am making two separate Wills dealing with UK and Thai estates.

Though I've always been pretty sure and advice from my Thai lawyer confirms this is the proper and in fact the only way to do it, the realist in me leans to advice in this column over that of a Thai lawyer in the trap as my executor. Confidence is even lower when I recall that having taken one look at the format and spelling and gramatical errors, ambiguity, wrong address and even transposed ID numbers in his draft, I had to take it home for a complete rewrite.


2 - Sounds ok from here, but is the following clause clear enough for the Thai courts?

This Will addresses only my Estate within the Kingdom of Thailand, and I hereby revoke all previous Wills and codicils and other instructions that address my assets within the Kingdom of Thailand. My Will that addresses my assets in the United Kingdom remains valid and effective in regard to those assets.


And a difficult 3 - Most important, and many thanks to whoever brought this up because I have serious reservations about the likely consequences of mrs k's inheritance being hijacked by her own family, leaving her with little to nothing before she realises how much of what she started with is now theirs.

Note that not only does she not share my concerns but though I need to drag her past 50% off signs her general attitude is more towards helping out her family than gathering gold and trinkets for herself, and she really does naively look at the world through rose tinted spectacles. Best example is when I asked what she would do with that amount of baht, which has since increased, and she said with no hesitation that she would set up her mother and elder sisters so they can have most of it , but that's ok because hopefully by then she'll have her uni papers and can get herself a good job. Not a thought to the black hole of running costs or my wish to give her the tools to never work again. Oh, education is something she's really into but don't let the motivation to work fool you, she's so idle I often wonder how she ever survived before we met.

So, is there a practical way to protect the bulk of her inheritance, perhaps by giving her a property and lumpsum to get on with and then a generous monthly pension, at least for a few years?

keda

1 - I’m also wary of the idea of having multiple Wills for a number of reasons but I accept that the academic debate is still out on reaching a final conclusion. The primary reason/problem that you have is inconsistency. How is a person to know what you really wanted when in “Will A” you say the house is to be given to person A and in “Will B” you give the same house to person B. You definitely don’t want the possibility of that scenario occurring and that of course is an obvious example of an inconsistency. Its usually a matter of feeling confident of doing one Will that will be recognised in the various jurisdictions as opposed to having a Will in each jurisdiction dealing with the assets therein.

Don’t be too worried about spelling mistakes etc in Wills, thats the point of reviewing drafts and especially if you are dealing with a person whose English isn’t their primary language. Of course, if it’s just a total balls up....you might look at your options of going somewhere else. The concern that I read in your post is that you say that the Will has ambiguities in it – which is what it should being trying to avoid. The cost of doing a proper Will is but a drop in the costs of something going wrong (being the legal costs of challenges as well as the end result not being reflective of your intentions).

2 – The clause that you referred to could be drafted cleaner. It starts by saying that any reference to assets in Thailand (residual estate??) will revoke that Will but then tries in a very poor way imho to qualify that statement. As an example, it should be phrased along the lines of “I revoke that clause/s referring to whatsoever property both real and personal held in the Kingdom of Thailand....” etc. BUT, it would be so much easier to ensure that your Will/s are drafted in the knowledge of each other and thereby ensuring no inconsistencies. The problem is that most Wills start off along the lines of revoking all former Wills etc. The other way to do it is to have your Will in the UK and then attach a copy of your Thai Will as a codicil (while observing the formalities). I prefer to keep away from using codicil’s for a number of reasons and to the point that I’ve never done one.

3 – This is the typical thai attitude of children (especially daughters) to their parents. They have a life debt to repay to ensure that their parents are taken care of in their elderly years. The part about setting up/looking after her elder sisters is interesting though. Like it or not, you won’t see a change in this attitude no matter what she may say to the contrary. To answer your question, the only way that I could see you protecting your offshore assets (yes they are yours) for her sole benefit is to set up an offshore trust which has been discussed above. Also, you should realise that there are practical differences between a trust created by operation of a Will as compared to a trust created by Deed. There are benefits and negatives to each, depending on a person’s individual circumstances and the jurisdiction involved.

Here is a short answer to your question which may be of assistance depending on your circumstances:

If you have someone you trust in the USA you appoint them as executor of your will. If you anticipate your will might be challenged by a relative or other person then things get a little complicated, but if you don't anticipate a challenge then court proceedings are a formality and the executor handles distribution of the estate.

As you likely know you should have a seperate will for each country you have assets.

Isee, my wife is a lawyer (NZ and OZ) as well and sees hardly any comparatives between Thai law and ours.


Are you going to do anything with your legal training here, is there an option to do anything?
We've just moved/are in the process of moving and still so many things unanswered

I thought Thai law was founded on British Common law?

Don't ask me, I'm an economist . . . and that's not a joke. (The statement, not the degree)

I would presume that the basis might be but the alterations made by 46 governments since inception might have made that unrecognisable

Originally Posted by Sir Burr

I thought Thai law was founded on British Common law?

Given that Thai law is a Civil Code law, and English law is Common law, I somehow doubt it.

Last time I checked, there was no such thing as "British" law, although there was something called "European" law

As to Thai law, I think you'll find the origins was nicked from those French and German people

Isee - Aus lawyers are popular here. Allens Arthur Robinson have a JV here with a number of secondees from Aus. I know that Clifford Chance, A&O, Herbert Smith, Linklaters, Baker & McKenzie and Norton Rose all either employ foreign lawyers (especially Aussies) or have done.

The issue really though is two-fold:

- do you have a realistic shot at partnership in BKK? The honest truth is no.

- will you get the fringe benefits, like schooling paid for? 5 years ago I would have said yes to that, today the more honest answer would be that it is unlikely.

In truth, any practice of law in Thailand by foreigners (and there are lot, some good and some so awful it begs belief) is normally done by those who have got off the tred-mill and are looking for some form of work-life balance.

Fact is, I probably know more foreign qualified lawyers, English, Aus and Americans doing things outside of law in Thailand as I do in law.

I should have added that the term "quailfied" lawyer in Thailand is a misnomer. There is no such thing. Thai lawyers do not do articles.

Indeed, and this I love, there is nothing stopping you advising on Thai law even though you don't have a degree in law - other than your clients would need to be fools.

Essentially the way it works here is you go to uni and get you LLB. You may then go on to do an LLM - either in Thailand or overseas. If you want right of audience (i.e., go to court), you do need to do the solicitors' exam and get a solicitors' pratice card, but this is not need in a consulting basis.

If you want to become a judge, you need to do the Bar Exam. Strange as it may seem, I actually know a guy who passed the Bar Exam before he had completed his LLB!

The process of judges here though is very similar to France in that you select to be a judge at a very early age and then work your way up. You don't go the a barrister/socilitor route (in fact, "barrister" is a misnomer here too, but many who have done master's programs overseas and who have passed the bar do tend to call themsleves "barristers" from a general misunderstanding of the concept).

on the issue of foreign lawyers in Thailand - Isee is correct. Foreigners are prohibited - under the FBA - from practising law in Thailand.

There has been, however, over the last 10 years a general blurring by foreigners who come here. 10 years ago no foreigner would put in writing any comment as to Thai law advice. Today you often see foreign lawyers sign-off commenting as to applicability of Thai law. Personally I think this is rather foolish, as the laws are still in place prohibiting this and I doubt anyone of them has a work permit issued to work as a "lawyer" in Thailand.

But that's just me.

As an aside, under WTO rules, Thailand was supposed to have relaxed these restrictions in the mid-1990s, which goes to show you how effective the WTO is!

Thanks William, very informative as usual.

Every situation is different. I know many of you will say that I am crazy. In my case I made it simple. I turned all I owned into cash, transferred it here and put it all in her bank account. I only had money and property in Florida but I wanted my wife to have everything and probate court out of her life including all legal problems. So at this point in time I own nothing except my monthly retirements which terminate when I do. I have also made it clear to her about how to handle money on her own after I am gone. She knows that if she gives it away or spends it all she will be the one to suffer and no one else.

Um, seriously, how did you explain to her about money management in a way that she could come to terms with, keeping in mind they have trouble with the concept of millions?

Mine 'knows' that if she gives it all away she'll have nothing left, but as things stand I'm convinced she'll start by making herself the family saviour with a tranche, and then drip the rest away into that black hole of running costs.

Originally Posted by keda

Um, seriously, how did you explain to her about money management in a way that she could come to terms with, keeping in mind they have trouble with the concept of millions?

Mine 'knows' that if she gives it all away she'll have nothing left, but as things stand I'm convinced she'll start by making herself the family saviour with a tranche, and then drip the rest away into that black hole of running costs.

Millions? What Millions?? Hey, please don't tell everyone.

My wife is more westernized then that. In fact she is almost stingy. She won't even spend money on herself even when I push her.

Originally Posted by ceburat

Originally Posted by keda

Um, seriously, how did you explain to her about money management in a way that she could come to terms with, keeping in mind they have trouble with the concept of millions?

Mine 'knows' that if she gives it all away she'll have nothing left, but as things stand I'm convinced she'll start by making herself the family saviour with a tranche, and then drip the rest away into that black hole of running costs.

Millions? What Millions?? Hey, please don't tell everyone.

My wife is more westernized then that. In fact she is almost stingy. She won't even spend money on herself even when I push her.

Yes, but they will take away from themselves to give to the family - which is what I believe keda's point was. I agree with keda's perspective when dealing with the lower socio/economic families. Your wife's stingy ways just means more funds available to the family - as I could guess that one argument will be that she didn't need all that money with how she lives her life.

Been married Thai 35 years, but coming back LOS getting one done in Thai first thing.