Making A Will For Gay Partner

[Pawpal]

My partner (Thai) and I (farang) want to make wills naming each other as sole beneficiary. (The "estates" consist primarily of property and bank accounts.)

Is this possible? Could a relative (his closest relative is his brother) have the will overturned in court?

A related question: I own a condominium and he owns a house. Presumably there would be no problem for him to inherit the condo; but what happens when/if a foreigner inherits a house?

Thanks

[backflip]

I haven't a clue why you think your sexual orientation has anything to do with anything. It's not necessary to declare a beneficiary's sexual preference in a will. Accordingly, you can state "I leave all of my property, real and otherwise, to my friend Bob". If your will reads, "I leave all of my property real and otherwise to my gay friend Bob", I'm sure everyone will have a chuckle. With a very few exceptions, you cannot own land - regardless if you are straight or gay - if you are a farang.

[GuestHouse]

I haven't a clue why you think your sexual orientation has anything to do with anything.

I can think of a good reason.

If same sex partnerships are not legally recognized where the will is being enacted then it might be possible for a sibling, or parent to claim a relationship/dependency etc which takes overriding precedence to that of the same sex partner. If the relationship is not recognized then the challenge may be 'family' against 'friend' with all the garbage that might be loaded on the surviving same sex partner.

So I think the question is very valid. I'd suggest the OP speaks to a lawyer working in the jurisdiction where the will is enacted.

If there is property/wealth in two jurisdictions consider two wills and take legal advice for both.

[backflip]

The OP implied that he and his partner were living in Thailand. Are same sex relationships legally ecognized in Thailand? As for challanges to a will, any will can be challanged.

[samtam]

I agree with backflip that mention of whether the beneficiary is gay or straight is irrelevant. And I am at a loss regarding Guest House's comment that a family might challenge the will because the relationship of the (gay) friend is not recognised legally. Is it a law in Thailand that you have to have a legal relationship with your beneficiary? Surely with a properly executed will, witnessed (preferably by your lawyer), you can leave your estate to whomsoever you wish.

My gay partner and I have Thai wills which make each other the beneficiary of our estates in Thailand. We have another will in Hong Kong in relation to all other assets. At no stage did the lawyer here suggest that there would be any problems relating to execution of the Thai will, and I would have been very surprised if he had.

As with any legal matters, get a good lawyer.

Edited February 7, 2007 by samtam

[Jingthing]

I am surprised that people lack the imagination to understand that in some societies which are repressive to homosexuals (such as many states in the USA) there are laws in place that can and do jeopardize the rights of gay "families" which are not legal or recognized under the law. I have heard that it is quite common in the US when a wealthy gay person dies for the biological family to challenge wills in court, when all the assets are given to the gay lover.

http://www.usatoday.com/news/nation/2004-0...y-protest_x.htm

Edited February 7, 2007 by Jingthing

[Jimjim]

I don't know about Thailand, but if you name someone your beneficiary in a will, especially if it's well-written with no loopholes for family, there is usually about zilch a family member could do about getting any inheritance. Your family could only claim access to your estate if your beneficiary preceded you in death and you never named a new primary beneficiary or never had a contingent or tertiary beneficiary in your original will.

I wouldn't suggest this, but making him an irrevocable beneficiary would make it a pretty tight case. That would mean you couldn't even change the beneficiary without his legal consent.

[samtam]

there are laws in place that can and do jeopardize the rights of gay "families" which are not legal or recognized under the law.

But I'm not talking about a recognised legally binding relationship, be it with a gay/straight person, the maid the driver etc.

If I leave my estate to my gardener in a legitimate will, witnessed by the appropriate people, then there is not much anyone else, who thinks they have a claim, or feel they should have a claim, can do about it. It has nothing to do with sexual orientation, or the social mores of that country. Even if you are stating that in some US states leaving your estate to a gay person is made illegal by the laws of that state, (and I'm not sure of these niceties), obviously you do not state the sexual orientation of the beneficiary, as it's not relevant.

And in any case we're talking about a Thai will.

Edited February 7, 2007 by samtam

[Jingthing]

True, we are talking about a Thai will.

But you still don't get the point. The family would KNOW about the gay nature of the relationship and could probably prove it, so in societies with laws that oppress gays, they would have some ammunition to fight to make a will invalid. I know this happens in the US. Seems much less likely to happen in Thailand, for sure, especially considering the farang's relatives probably live thousands of miles away.

What bothers me about your line of argument is that it implies that gay people's relationships have no practical need for societal recognition. I don't accept that.

Edited February 7, 2007 by Jingthing

[GuestHouse]

At no stage did the lawyer here suggest that there would be any problems relating to execution of the Thai will, and I would have been very surprised if he had.

But did you specifically ask the question.

Better to be surprized than disinherrited.

[samtam]

Jingthing: I'm sorry if my line of arguement gave the impression that I think gay people's relationships have no need for societal recognition. I don't know why you have that impression, but obviously as a gay person, I do firmly believe that they should.

GuestHouse: Yes, my Thai lawyer is familar with my relationship with my (Japanese) partner, as are both his and my families.

Edited February 7, 2007 by samtam

[Jimjim]

True, we are talking about a Thai will.

But you still don't get the point. The family would KNOW about the gay nature of the relationship and could probably prove it, so in societies with laws that oppress gays, they would have some ammunition to fight to make a will invalid. I know this happens in the US. Seems much less likely to happen in Thailand, for sure, especially considering the farang's relatives probably live thousands of miles away.

What bothers me about your line of argument is that it implies that gay people's relationships have no practical need for societal recognition. I don't accept that.

I think he does get the point, he just doesn't agree with you. Can you give us an actual case where a gay partner received benefits from a will and the family was able to claim the estate because the beneficiary was a gay lover of the deceased? I've never heard of this and doubt it happens often, if at all. A family could certain contest, but it the will is tight, I doubt it could hold up in court. The article you linked to was merely hot air. Those for the law said wills would not be affected while those against the law were worried it would. Nothing for sure there. It's the room for interpretation they were worried about. However, I'd say it's unlikely such cases as you describe will legally come to pass. The U.S. is a homophobic nation in some regions but the ACLU has a lot of power, as does PC.

[ProThaiExpat]

Most of the posts, so far are "spot on", in my opinion, except for the passing on of rumors regarding "stories" of "press articles".

How often do we see headlines of multi-million dollar jury verdicts, that when later reduced to almost nothing by the judge or on appleal, are buried in the newspaper for none to see.

If you are a direct decendent recognized by the law of the jurisdiction, such as a child and in some cases siblings or parents, there is a presumption of a right of inheritance, absent the intent of the testator.

Clearly, a will is the best place to determine the "will' or the intent of the testator, and unles very poorly drawn, leaves no doubt as to what that "testimentary desire" is.

Most attorneys drawing a will will use a simple device of including close relatives in the will for small amounts so the argument that they were "forgotten" holds no water.

Will contests are rarely drawn on anything other than "undue influence", the suggestion that the testator was "unduely influenced" by a person who had unusual access to him and "swayed the testator into making a will that didn't accurately represent his testimentary intent" Sexual prowess by a young and beautiful female acquaintance has been the source of many such will contests.

Simarlarilly a child might claim "undue influence" as a basis of a will contest against a "gay lover" for similar reasons.

Clearly, it is up to the lawyer in the "recitals" portion of the will to lay out the relationship, the reason for the bequest, etc.

Much tougher to challenge reciprocal wills when the ipso facto nature of the relationship can be seen on its face.

[GuestHouse]

Wills are often successfully challenged.

That a lawyer is aware his clients are in a same sex relationship is not the same thing as a lawyer checking/confirming and acting to ensure that the will cannot be challenged on the basis of the same sex relationship.

It seems to me that the arguments placed against the OPs question are based on the unfounded belief that 'Same Sex Relationships ought not to be an issue in ensuring a will stands unchallenged'.

There are lots of things in life that 'ought not to be', but at least in life we have a chance to challenge them and take measures against them.

When we are dead we can do neither.

It seems therefore that he OPs question is wholly sensible and that taking steps to ensure that his same sex Will stands un challenged is the right thing to do.

Assuming it cannot not be challenged because you think that "same sex" is not an issue is naive.

Ask any lawyer about the bitter infighting that too often arises around wills.

I have personally seen a family behave despicably in their fight over a will, and I am told that families frequently tear each other apart over small amounts of money in a will.

[samtam]

I reiterate:

As with any legal matters, get a good lawyer.

Really better than any of our speculation.