Is this fair and just?

[Cousinjohn]

Problem: Joint tenant in common dies, intestate.

Surviving tenant acquires total interest in property (Condo) - apparently legally! Despite no Will or supporting paperwork.

Family repeatedly requested supporting documentation - no response.

Towards the end of 2005 my cousin and a lifelong friend jointly purchased an apartment in Bangkok on a "Tenants in Common " basis.

In August 2009 my cousin died, intestate, from the effects of advanced Cancer. At that time my cousin's friend assured me and my cousin's family that under Thai Law the surviving tenant automatically became the residual owner of the property.

Both my cousin and his friend (the joint owner) had been close friends for many years and on that basis the family had no reason to doubt his statement relating to the new title. Accordingly on the day of the funeral (in UK) I passed over an authorised copy of the Death Certificate.

It was only three years later, when trying to tie a few loose ends relating to my cousin's estate it was found disturbing that we were not getting responses to our queries and odder still to discover that the property had still not been conveyed into the remaining Tenant in Common's name! In the light of this information we made enquiries regarding the claim that the property would transfer automatically to the surviving tenant. We found that the assurance we had been given was entirely false.

For over a year the family has requested information and paperwork to substantiate the fact that the property was being legally conveyed into the friend's name. Eventually we received a photo via email depicting a yellow Tabien Baan showing the name of the now supposed owner of the property. There is no doubt that this item was meant to deliberately mislead us into thinking that it was a document relating to ownership rather than merely a simple record of occupiers!

Again we challenged the friend on this point and to date have not received any form of explanation.

As my cousin, who at this time was in UK, knew he had not long to live he asked me to take him to a solicitor in order that he could tie up his affairs and make a Will. This I did and we were advised that any Will made in UK would be invalid in Thailand, so this course of action was abandoned. The reason, of course that my cousin wanted to make a Will was because having never made one he did not want to die intestate.

Subsequently my cousin died two weeks later.

As mentioned earlier, three years after my cousin's death we were given to understand that the property had still not conveyed into the friends name. We then started to press for answers to the foregoing irregularities.

With astonishing speed a Will was "found" in a filing cabinet in my cousin's former home written entirely in favour of the former friend. On this basis the property we understand has been conveyed, in it's entirety, into his name.

A number of my cousin's acquaintances have conveyed anecdotal evidence relating to the timely discovery of the Will as being somewhat suspicious. In addition, further anecdotal evidence exists that the now owner of the property, had for some time contemplated the production of a fraudulent Will in his favour.

Being that this is only anecdotal we have, on repeated occasions, asked for a copy of the Will without any response. There seems no reasonable explanation as to why this request should not be granted especially in the light of the present circumstances. The friend has also been written to by our Barrister in the UK who will be instructing his Thai counterpart in the event that his letter goes unanswered regarding his request for a copy of the Will.

In short we do not understand the workings of Thai Law and would be grateful for any help and guidance on the following questions -

How does one go about obtaining a copy of a Will when the person who administered the Will in Thailand refuses to pass a copy to the deceased's family and immediate next of kin in UK?

If one suspects that a Will is fraudulent, how does one proceed in proving that this is indeed the case?

At which point should one make a Police Report bearing in mind that the deceased's family has not yet seen the Will?

How does one go about making a Police Report in Thailand when the deceased's family members are not in a position to travel to Thailand?

Are there any other avenues that the family should pursue in trying to resolve this situation?

Much of the foregoing has been brought about by the family trusting someone they thought was a decent and trustworthy individual.

Edited August 15, 2013 by Lite Beer
Oversize font reset to normal. Please do not post using overly large font.

[pattayadingo]

That is a h_ll of a font!!

[CWMcMurray]

I do not know the answers to all of your questions, but have some experience with a US expat that passed away while working at our company. He did not own his own condo and did not have a whole lot, but he did have a will here in Thailand.

When he was admitted into the hospital and later passed away, I helped to communicate with his family in the USA, the US Embassy and the executor named in his will.

When he passed away, all of his accounts were locked by the Bank and the US Embassy was notified, who then also notified his next of Kin in the USA.

I also remember that the executor of the will advised that he had to go to the US Embassy to show them the Will and received some paperwork from the Embassy along with the death certificate and the will in order to go to the Local Amphur (Town Hall) to file for death Benefits and to get documentation needed to release his Bank accounts.

He had advised that this paperwork from the Embassy was needed before the Thai authorities would allow him to proceed with collecting funds and assets. Not 100% sure but am guessing that US Embassy checked with Family or the Will to ensure that this person was authorized to handle the estate of the deceased.

I would guess that it would likely be the same for a UK citizen, so you or your lawyer may want to check with UK Embassy in Bangkok to see if they have been involved in the process as they may have seen or made a certified copy of the Will at some point or to see if they may have issued any documents to anyone.

Then once you have the will, you can take a look at it and see if you believe it to be a fake.

Another option would be to contact a lawyer in Thailand and file a case with the courts. Although this would likely be fairly expensive option and may require you to come to Thailand at some point as well.

[chickenslegs]

You say that your barrister has a counterpart in Thailand. All your questions should be referred to him/her.

Anyone on this forum who is not a Thai lawyer will be just guessing.

My guess is that your cousin's 'lifelong friend' is probably going to keep the condo - which may be fair and just, if it's what your cousin would have wished.

[harrry]

http://www.aussielegal.com.au/informationoutline~nocache~1~SubTopicDetailsID~724.htm

I realise this is an Australian document but the law is generally similar to UK in this regard.

It explains the diference between tenants in common and joint tenants.

As you said they are joint tenants the surviving tenant owns the lot. It is not part of the estate.

SURVIVORSHIP – MAIN PRACTICAL DIFFERENCE

Tenants in Common

The interest of a tenant in common can be left under that person’s will and forms part of their estate. If a tenant in common dies without a will that person’s interest will pass under his estate under the rules of intestacy.

On the death of one of two tenants in common the survivor retains their interest and the decease’s interest passes with his Will. There is no automatic transfer to the other. The tenancy in common continues.

Joint Tenancy

On the death of one joint tenant that person’s title or interest in the property automatically passes to the surviving joint tenant by operation of law. Therefore, where a couple own land as joint tenants and one decides to leave his or her interest under a Will to their child this will not be possible as the survivorship principle over-rides the Will. The interest of that person will automatically pass to the spouse on that person’s death. When we say, automatically, the LPI still requires a form called a Notice of Death, referring to the Death Certificate issued by the Registry of Births, Deaths and Marriages, to be lodged with a registration fee, in order to change the title records, but this is only a formality.

On the death of one of two joint tenants the survivor becomes the sole owner of the property and there is no longer a joint tenancy.

Presumption of Tenancy in Common

Under conveyancing law in New South Wales there is a presumption that where 2 or more people acquire an interest in property they do so as tenants in common unless the document where the interest was acquired specifically provides that they are to take as joint tenants.

This came through the introduction of the Conveyancing Act in 1920 and overturned the previous age-old general law presumption that property held by two or more was held by them as joint tenants.

Edited August 14, 2013 by harrry

[GuestHouse]

I don't see the problem, your cousin wanted his friend 'tenant in common' to become sole owner of the appartment when he ( your cousin) died.

Your cousin's friend has posession of the appartment, though seems not to have had the title officially transfered to their name.

Now a will has turned up in favour of the friend you say your cousin wanted to be the beneficiary of his estate.

Where's the problem?

Edited August 14, 2013 by GuestHouse

[mogandave]

I don't see the problem, your cousin wanted his friend 'tenant in common' to become sole owner of the appartment when he ( your cousin) died.

Your cousin's friend has posession of the appartment, though seems not to have had the title officially transfered to their name.

Now a will has turned up in favour of the friend you say your cousin wanted to be the beneficiary of his estate.

Where's the problem?

He didn't get it?

[onvacation]

Do not try to come down in person and demand for the will for you may put your life in danger. I would say find a good Thai lawyer to take care of the business on this end.

[Crossy]

I don't see the problem, your cousin wanted his friend 'tenant in common' to become sole owner of the appartment when he ( your cousin) died.

Your cousin's friend has posession of the appartment, though seems not to have had the title officially transfered to their name.

Now a will has turned up in favour of the friend you say your cousin wanted to be the beneficiary of his estate.

Where's the problem?

That's how I read it too, perhaps our OP could clarify if that is indeed the case.

If so it's just some legal tidying up needed (and probably a fee at the land office).

[pigeonjake]

i agree with guesthouse, on this, in that your cousin wanted his freind to get the property on his death, thats how im reading it,?

maybe its the family, who dont want this person to get the property,

money brings out the best and the worst in people,

jake

[Gsxrnz]

I don't see the problem, your cousin wanted his friend 'tenant in common' to become sole owner of the appartment when he ( your cousin) died.

Your cousin's friend has posession of the appartment, though seems not to have had the title officially transfered to their name.

Now a will has turned up in favour of the friend you say your cousin wanted to be the beneficiary of his estate.

Where's the problem?

That's how I read it too, perhaps our OP could clarify if that is indeed the case.

If so it's just some legal tidying up needed (and probably a fee at the land office).

Yeah I'm a bit confused too. Is it possible there are two "friends" in the story?

[zaZa9]

"Towards the end of 2005 my cousin and a lifelong friend jointly purchased an apartment in Bangkok on a "Tenants in Common " basis."

If your cousins 'life long friend' was the intended recipient of your cousins share of the condo on his death ( the tenants part I dont understand - they either owned it or rented it) , then why raise all these investigations?

It seems to me your cousins wishes have been achieved without the need of expensive lawyers , but now the family will have to necessarily engage them to answer your questions.

For what reason?

To what end?

I also suggest that the family ( not saying you ) will lose any money in the pursuit of whatever aims they are hoping to achieve. Thai law is notorious for protecting the interests of Thai people .

The emphasis here is on the 'spirit' of the law , not the 'letter' of the law.

As such , magistrates here will most likely see the matter as already having a just outcome.

Edited August 15, 2013 by zaZa9

[Suradit69]

Clearly any legal advice should come from the Thai lawyer, although I expect "Barrister in the UK who will be instructing his Thai counterpart" is anticipatory hyperbolic speculation. How many UK barristers have Thai counterparts on call to receive instruction? I assume the OP is looking for sympathy rather than seriously expecting anyone here to provide meaningful, actionable advice.

If a Thai will was presented to a Thai court and probated by them, it may be a little late in the day to be contesting it.

I do not know the answers to all of your questions, but have some experience with a US expat that passed away while working at our company. He did not own his own condo and did not have a whole lot, but he did have a will here in Thailand.

When he was admitted into the hospital and later passed away, I helped to communicate with his family in the USA, the US Embassy and the executor named in his will.

When he passed away, all of his accounts were locked by the Bank and the US Embassy was notified, who then also notified his next of Kin in the USA. to come to Thailand at some point as well.

Yes, but he died in Thailand or else the embassy wouldn't be involved. The OP is talking about someone who died in UK. The UK embassy wouldn't be in the loop under those circumstances.

Edited August 15, 2013 by Suradit69

[Regyai]

Where there's a will

theres a relative

[Pacificperson]

Where there's a will

theres a relative

It looks that way to me too. I say to the OP: bugger-off and leave your cousin's life-long friend in peace.

[AnotherOneAmerican]

I don't see the problem, your cousin wanted his friend 'tenant in common' to become sole owner of the appartment when he ( your cousin) died.

Your cousin's friend has posession of the appartment, though seems not to have had the title officially transfered to their name.

Now a will has turned up in favour of the friend you say your cousin wanted to be the beneficiary of his estate.

Where's the problem?

You are wrong GH,

"tenant in common" retains the right to pass on their share of the property after death.

It's 'joint tenant' where the survivor gets the entire property with no questions or need for a will.

@ZaZa

When two single people own a property they can choose the method of ownership to be listed on the deeds.

Tenant in common, own jointly with right to will their share on death to a third party.

Joint tenant, own jointly where the property becomes owned by the survivor on death.

Edited August 15, 2013 by AnotherOneAmerican

[GuestHouse]

No I'm not wrong AOA, I have not discussed the legality - I have observed that the stated wishes of the man who died have been met with or without a will.

The OP needs to explain where the problem is.

[harrry]

Something strange here. When two people purchase property here both names are entered on the chanote.

[rak sa_ngop]

I don't see the problem, your cousin wanted his friend 'tenant in common' to become sole owner of the appartment when he ( your cousin) died.

The OP states that his deceased cousin wanted to make a Will in the UK to will his Thai assets. He was advised that he could not do this with a UK Will . To me this suggests he wanted to bequeathe his assets to some other party and not necessarily his 'tenant in common' friend.

Regardless of this fact the OP states that a Will had been found 3 years later and the share in the property transferred to the 'tenant in common' friend. Seems pretty reasonable to me that the OP who is family member of the deceased should at least be allowed to see a copy of this will.

[mogandave]

Indeed

[AnotherOneAmerican]

No I'm not wrong AOA, I have not discussed the legality - I have observed that the stated wishes of the man who died have been met with or without a will.

The OP needs to explain where the problem is.

In this case, one could infer the deceased clearly wanted to pass his share on to a third party, by his choice of "Tenant in common" on the deeds. Many people tell their partner one thing, to keep the peace, while actually intending the opposite.

Edited August 15, 2013 by AnotherOneAmerican

[GuestHouse]

The OP states that his deceased cousin wanted to make a Will in the UK to will his Thai assets. He was advised that he could not do this with a UK Will . To me this suggests he wanted to bequeathe his assets to some other party and not necessarily his 'tenant in common' friend.

.

The OP has told us his cousin was dying of cancer in the UK and wanted to make a will - The only ntention of the dying man that we know of is his wish to leave his share of the property to his life long friend the Tenant in Common.

Your conclusion that he had any orher intention is pure supposition.

Edited August 15, 2013 by GuestHouse

[GuestHouse]

No I'm not wrong AOA, I have not discussed the legality - I have observed that the stated wishes of the man who died have been met with or without a will.

The OP needs to explain where the problem is.

In this case, one could infer the deceased clearly wanted to pass his share on to a third party, by his choice of "Tenant in common" on the deeds. Many people tell their partner one thing, to keep the peace, while actually intending the opposite.

More supposition.

[fletchsmile]

My reading was as follows:

The cousin and his friend chose "tenants in common" when they bought. This means that their share of the property does not automatically pass to the other tenant on death.

If they understood the implications and they wanted their shares to pass to each other on death they should have chosen "joint tenancy". So the fact they did not choose "joint tenancy" means either:

1) they didn't understand the implications of the description they chose; or

2) they did not intend for interest shares to pass to each other

OP only wrote that the cousin went to a UK solicitor to make a will to tie his affairs up. OP didn't specify who that will would favour as a beneficiary, or whether the cousin even communicated that.

So neither of these really clarifies either way what the intentions of the cousin where.

If I were OP, the first question to answer is whether the cousin intended his interest on death to pass to the other person or not. This may or may not have been discussed before going to the solicitor. So:

1) If the answer to that question is known, then do the right thing and follow what the cousin's intended wishes were

2) If the answer is not known and they didn't know the intended's wishes, then by all means go ahead and stake a claim on the interest. That's a legal right, and given the wishes are unclear it seems fair to do so

Cheers

Fletch

Edited August 15, 2013 by fletchsmile

[sustento]

Clearly any legal advice should come from the Thai lawyer, although I expect "Barrister in the UK who will be instructing his Thai counterpart" is anticipatory hyperbolic speculation.

Indeed it is. Barristers in the UK don't deal with this sort of situation. They are courtroom advocates. The situation the OP is talking about would be dealt with by a solicitor in the UK.

[Regyai]

Contesting the veracity of a will in Thailand from 5000 miles away, with a half share of a condo as the prize (resplendent with in situ opponent).

Contemplating UK legal vultures instructing Thai legal piranhas

Pardon the cynicism but if you come out of this with a portion of Som Tam oreven the shirt on your back I'll be surprised

[GuestHouse]

Double Post deleted

Edited August 15, 2013 by GuestHouse

[GuestHouse]

This is interesting

The OP has this morning edited his post removing the statement that his cousin wanted his lifelong friend and tenant in common to receive the property.l

The OP needs to explain himself.

Edited August 15, 2013 by GuestHouse

[GuestHouse]

If the OP can't get his story right here on TV without going back and editing it a day later when the holes start to show then I don't fancy his chances when his statements are subjected to legal scrutiny.

[Regyai]

This is interesting

The OP has this morning edited his post removing the statement that his cousin wanted his lifelong friend and tenant in common to receive the property.l

The OP needs to explain himself.

Or perhaps he already has