Problems Concerning Appointment of an Administrator of the Estate by an Order of the Court in the Case of a Testamentary Stipulation Appointing an Administrator of the Estate

Abstract

This research seeks to explore section 1713 paragraph two of the Civil and Commercial Code which provides: “In appointing an administrator of the estate, if there is a testamentary stipulation, the Court shall appoint the same in accordance with the testamentary stipulation and, in the absence of any testamentary stipulation, the Court shall make the appointment for the benefit of the estate in accordance with circumstances, having regard to the intention of the de çujus, as the Court may deem appropriate.” Despite such apparently mandatory provisions, the Supreme Court, as revealed by a long line of its decisions, has established a firm interpretation that such provisions merely provide guidance for the Court in the appointment of an administrator of the estate by an order of the Court in the circumstances of a particular case rather than serving as a mandatory rule directing the Court to appoint the person indicated in the will as an administrator of the estate. Such interpretation provides an avenue for a critical discussion of its theoretical sensibility and practical difficulties emanating from the said judicially established approach. This research is qualitative research relying on information from textbooks in Thailand and elsewhere, including the United Kingdom, Germany, and France, and also from legal journals, articles, theses, and opinions of legal scholars. The study leads to the finding that the rule established through the decisions of the Supreme Court as mentioned above is at variance with the spirit of the provisions of law and also runs counter to the intention of the will-maker de çujus. Indeed, such a judicial creature is apparently incorrect when considered in the light of juristic methods concerning the interpretation of the law. It is, therefore, recommended that the judicial approach to the interpretation of the provisions of law hitherto indicated should be changed to the right direction or, alternatively, such provisions of the law should be amended in the avoidance of practical difficulty and prejudicial effects on the last will of the de çujus as indicated in the will executed by him.