THE PROBLEMS OF SUCCESSION IN SECTION 1607

Abstract

              This article is intended to explore historical backgrounds and the spirit of the law in relation to the succession following exclusion of heirs from the succession. The study reveals that the rules of law concerning the succession when an heir is excluded from the succession are new principles embodied in the Civil and Commercial Code as promulgated in 1935 and indeed essentially resemble the provisions of certain foreign laws as then in force; for instance, the German Civil Code and the French Civil Code. In the context of the exclusion of heirs from succession, the spirit of the law lies in the imposition of penalty on an heir who has committed certain misconduct as provided by law. In this connection, such blameworthy heir is punished by being deprived of the right to succession and such punishment produces merely a personal effect on that heir. Given such personal effect flowing from the exclusion from succession, the law allows descendants of the excluded heir to succeed as if such excluded heir were dead, as provided in section 1607 of the Civil and Commercial Code. Notwithstanding, section 1607 is worded in a succinct and unclear manner and thereby prompts a large avenue for interpretation as to whether the permissible succession by descendants of an excluded heir is subject to the same rules governing the representation for the purpose of receiving inheritance as encapsulated in section 1639 of the Code (which is the provision setting out rules applicable to the case where a statutory heir is excluded from succession).

            Therefore, this article discusses critically, in particular, (1) whether the principle of law in relation to the succession by descendants of an heir who is excluded from succession is subject to the same set of rules applicable to the representation for the purpose of receiving inheritance or not, (2) the principle accommodating the succession by descendants of such excluded heir applies to the case where the exclusion from succession occurs to what type of heirs and (3) whether descendants of an excluded heir must be direct descendants. Upon such critical discussions, this thesis proposes an appropriate approach to the interpretation of the principle of law concerning the succession by descendants of an heir who is excluded from succession – the interpretation which provides clarity as well as conformity with the true spirit of the law. Indeed, this study also resorts to a comparative law method, whereby principles of Thai law are compared with those embodied in the laws of Japan, France and Germany.

            It is suggested that legal interpretation should be made to the following effects. First, the principle regarding the succession by descendants of an heir who is excluded from succession is subject to the same set of rules applicable to the representation for the purpose of receiving inheritance. Secondly, the application of such principle above is limited to the case where the heir who is excluded from succession is a statutory heir under section 1629 (1), (3), (4) or (6) only. Finally, descendants of an excluded heir must be direct descendants only. To these ends, the Civil and Commercial Code should be amended in the direction of repealing section 1607 and revising the substances of section 1639 accordingly.

Keywords

            Succession, Representation for the Purpose of Receiving Inheritance, Exclusion from succession