Wills and Probate in Singapore - PDF

Takeaways A will is a declaration in writing made by a testator, in accordance with the formalities required by law, regarding the distribution of their estate upon their death. The key characters in a will are the testator, executor, and beneficiary. To make a valid will, the testator must be at...

Takeaways A will is a declaration in writing made by a testator, in accordance with the formalities required by law, regarding the distribution of their estate upon their death. The key characters in a will are the testator, executor, and beneficiary. To make a valid will, the testator must be at least 21 years old and of sound mind. A will must be executed in the presence of two or more witnesses who subscribe to the will in the presence of the testator. A will takes effect upon the death of the testator and can be changed during the testator\'s lifetime. Important clauses in a will include the commencement clause, revocation clause, appointment of executors and trustees, appointment of guardians, specific gift clause, residuary gift clause, testimonium clause, and attestation clause. Considerations for drafting a will include including all relevant names and details, understanding the profile of beneficiaries, and avoiding partial intestacy. When taking instructions for a will, it is important to keep proper attendance notes and ensure clarity in understanding the testator\'s intentions. In an intestacy situation, where someone dies without a will, their estate vests in the public trustee until a grant of letters of administration is obtained. Further topics to explore include the rights of illegitimate and adopted children, the effect of bankruptcies on succession and administration, and issues related to concurrent deaths. Andrew Yip (00:00.12) Hello everybody, welcome to the SILE Part B Probate Succession Planning course. My name is Vincent Ho and I am a partner with Wong Partnership LLP. In today\'s lecture, I will be taking you through the lecture on the introduction to Wills and Probate. Before I begin the lecture proper, please note that you have been provided with reference materials, the lecture notes, as well as access the video lectures to help you along your learning journey for this course. Andrew Yip (00:36.664) So what is a will? I think most of us would have an idea of what a will is. A definition to consider is that a will is a declaration in writing, made in accordance with the formalities required by statute of the intention of the person making it with regards to matters which he or she wishes to take effect upon or after his or her death. In the Singapore context, the relevant statute is the will\'s act. I will now give you an overview of the key characters that feature in every wheel. The first key character is known as the Testator. This is the person making the wheel. The second key character is known as the Executor. This is the person naming the wheel as responsible for dealing with the estate upon the Testator\'s death. The third key character is known as the Beneficiary. Beneficiaries are persons named in the will to receive property from the testator\'s estate upon the testator\'s death. Andrew Yip (01:44.11) Who can make a will? As you would have seen from the last slide, a testator is the person who makes the will. There are two requirements. First, the testator must be at least 21 years old. This is required by Section 4 of the Wills Act. However, there are exceptions in Section 27 of the Wills Act that applies to soldiers, marines or seamen at sea. The second requirement is that the testator must be of sound mind, that is, that they have testamentary capacity. Please see the cases of Chimuelin Muriel and G. Carlin Caroline, as well as ULV and ULW. A is only valid when it complies with both formal and substantive requirements. The rules as to formal validity is found in section 5 of the Wheels which provides for situations where a will shall be treated as properly executed by the destator. Section 6 of the Wills Act requires that the will must be in writing, executed in the presence of two or more witnesses at the same time, and those witnesses shall subscribe the will in the presence of the destator. Indeed, a will has been held to be invalid when it was attested to by both witnesses but at different times and in different rooms, such that it was never signed or acknowledged in the presence of both witnesses. Please note the effect of Section 10 of the Wills Act, which will tell you why beneficiaries or the wife or husband of a beneficiary should not be a witness to the will. So when does a wheel take effect? Every wheel shall be construed with reference to the real and personal estate comprised in it to speak and take effect as if it had been executed immediately before the death of a testator, unless a contrary intention shall appear by the wheel. See Section 19 of the Wheels Act. This means that the simple answer is that a wheel takes effect upon the death of a testator. This is known as the ambulatory nature of a wheel. Andrew Yip (04:02.156) This also means that a wheel can be changed as often as a testator wants to during his lifetime, provided that he has the testamentary capacity to do so. Please look at your reference materials for a sample wheel. We will consider the following clauses in a typical wheel. The commencement clause, revocation clause, the appointment of executor and trustee, appointment of guardian, the specific gift clause, Residuary gift clause, Testimonium clause, and the attestation clause. We will focus on each clause in turn. The commencement of a will. There is no set form of words for the commencement of a will, but there is a need to properly identify who the testator is. An example of a commencement clause would read as follows. This is the last will and testament of me, full name, N.R.I.C. of address. The revocation clause. Please refer to section 13 and section 15 of the Wills Act. An example of a revocation clause. I revoke all former wills, codicials and other testamentary dispositions made by me. So what is a codicial? A codicil is a separate document made after the original will, which adds to or amends an original will. The same rules and formalities apply to codicils, which means that it must also be in writing, signed and acknowledged by the testator in the presence of two witnesses, and signed by the witnesses in the presence of their testator. What happens then if there is no revocation clause in the will? This may mean that wills previously made by the testator may be admitted to prove, and the present wheel would have to be construed together with the earlier wheels, so far as consistent, as forming the deceased last wheel. Andrew Yip (06:07.49) The next clause is the appointment of executors and trustees. What do executors and trustees do? Well, executors have two sets of responsibilities. First is to call in the estate and to ensure that the estate is dealt with according to the law. And secondly, to carry out the wishes of the deceased set out in the will. Executors must apply for a grant of probate. And once that is done, they can go on to distribute the estate as instructed by the will. Before the gifts are paid out, the executors must ensure that all the debts are paid and other liabilities met, and also ensure that outstanding funeral expenses are paid out of the estate. They then distribute the estate in accordance with the will. The role of a trustee of a will starts after the administration period of the estate. If there are assets to be held on trust, the trustees of the will hold the assets on trust for benefit of the beneficiaries under the will. Who can be appointed as Executives and Trustees? Anyone who is an adult, including beneficiaries of a will, can be appointed. However, please note that probate can only be granted to up to four persons. Please see Section 6 of the Probate and Administration Act. Substitutional appointment of executive and trustee is advisable, especially if there is only one named executive or trustee, as there is a risk that this person might predecease the testifier or choose to renounce his office. Andrew Yip (07:50.286) The next typical clause in the will is the appointment of guardians, if applicable. This is applicable if the testator, your client, has a child under 21 years old. The testator can appoint testamentary guardians under the will who need not be biologically related to the child. KC Section 7 of the Guardianship of Infants Act. An example of such a clause would state, I appoint my friend Peter to be the guardian of my minor children, Sylvia Lin and Matthew Lin, in the event of my death. But if he predecessors me, then I appoint my cousin, Nikochi, to be the substitute guardian thereof. We now turn to the main body of a wheel concerning clauses dealing with gifts. There are three main categories of gifts. Specific gifts, non -specific gifts, and residual gifts. A specific gift is a gift of a particular item or any asset, including land and other types of immovable property. Specific gift must be described accurately. Example of a specific gift. I give \$100 ,000 free of interest to my friend Andrew Chia provided that he survives me. Another example, I give my property known as 12 Maple Hill 0501 Singapore to my son Robert Tan. Non -specific gifts. A non -specific gift is a gift of something general. Let\'s look at this example. I give all my personal possessions to Olympic Town. In this example, there is no indication of any specific items to be gifted. Having distinguished a specific gift from a non -specific gift, you need to be aware of the difference between a gift of residue and a gift of something other than residue. In this example, Martin Fernandez gives \$200 ,000 free of interest to each of his four children. He gives all of his watches to his nephew Alan Chan. Everything else, he leaves to his wife. The gift of money and watches are specific non -residuary gifts, Andrew Yip (10:05.098) and the gift of everything else is a gift of residue. The next clause in the will is known as the Residuary Give Clause, also known as the Catch All Clause. Such a clause would cover all the property of the testator that has not been specifically provided for in the will. The Residuary Estate is usually used to pay debts, funeral and testamentary expenses, estate taxes if any and legacies. I will now show you two examples of Residuary clauses. The first is an immediate gift of Residuary Estate to a class of beneficiaries. Andrew Yip (10:48.15) In this second example for Residuary Clause, this is for trustees on trust for sale to be held for a beneficiary with provision for survivorship on give -over. In this example, a trust is needed because minor interest, being Wilson\'s children as the alternate beneficiaries on give -over beneficiaries, may arise if the primary beneficiary that is Wilson dies before the test data. The penultimate clause in the will is known as the Testimonium clause. This is placed at the end of the will and reads typically, In witness\' of I have hereunto set my hand this date of year. It is extremely important that you put in the date. The final clause in the will is the Attestation clause. There is no prescribed format. An example here. Signed by the above name Tanamui as her last will and testament, In the presence of us both present at the same time, who at her request and in the presence of each other have here to subscribe our namesake witnesses. Please also find an example of an attestation clause where translation of the will is required. Please note section 6 subsection 2 of the Wills Act, which requires the wills to be signed at the foot or end of the will by the testator and the witnesses. We now cover some points to note when drafting a will and advising a testator. If the testator holds assets in other names, for example, Li Yi Li Chua, also known as Karen L L Chua, the other name of the testator ought to be included in the will. This is so that when a grant of probate is issued on the will proof, it will bear all the names of the deceased and the assets held in the other names can be dealt with by the executor or the trustees. For the details of beneficiaries and witnesses, please note that the full names and NRIC numbers of beneficiaries and their respective addresses should be properly set out in the will. Witnesses should also include sufficient details so that it is possible to locate them in the future when necessary. The court may require an affidavit of due execution from a witness if the court has the queries on the execution of a will. Please see Rule 215. Andrew Yip (13:17.646) of the Family Justice Rules. Please be aware that there may be certain types of assets that cannot be disposed of in a will. For example, monies in the CPF accounts can only be dealt with by way of a CPF nomination. Please see Section 25 of the Central Provident Fund Act 1953. As for proceeds from insurance policies, Please see Section 131 to Section 133 of the Insurance Act 1966 to see what can be or cannot be distributed under a will. Please be careful when dealing with property held in joint tenancy. In joint tenancy ownership of property, the law of survivorship will apply. However, the ultimate survivor can dispose of jointly held assets in a will. An example of such a clause, if I outlive my husband, I give the property known as address to my son, Teck Leong. A will cannot severe a joint tenancy, which can only be severe by way of Notice of Severance and serving a copy on the other joint tenant. Please refer to Section 35 and 66A of the CLPA and Section 53, Subsection 5 of the Land Titles Act. For trust properties, assets placed in an intervivos trust Do not form part of the deceased estate. Andrew Yip (14:45.91) A gift fails if the gifted property does not exist at the testator\'s death. This is known as the principle of redemption. If there is insufficient money to pay cash gifts, then the legacies are reduced and this is known as abatement and each beneficiary takes paripasu. What happens when gifts are to be given to a testator\'s named child under the testator\'s bill but the testator\'s child dies before the testator. Generally, a gift by will elapses if a beneficiary dies before the testator. If there are no give -over beneficiaries, the gift falls into their Residuary Estate for distribution under the Residuary Clause. However, please note the effect of Section 26 of the Wills Act. This applies whether the child or children is or are specifically named in the gift. For example, I give my property, an XXX, to my son, John Tan. If A leaves issue, as at the date of death, any gift from A\'s father to A will not lapse, but pursuant to Section 26 will go to A\'s estate for distribution, unless a contrary intention is stated in the will. Therefore, if a parent wishes for the fear to give to pass to someone else other than the name deceased child as did an express clause in the will must indicate this contrary intention. Please note that Section 26 of the Wills Act does not apply to class gifts. For example, a gift to a class of children, I give my property at XXX free of encumbrances to all my surviving children in equal shares as at the date of my death. Section 26 Wills Act does not apply, and this gift would automatically let\'s me survive the deceased child. Andrew Yip (16:45.548) The gift will be redistributed to the rest of the surviving children in equal shares. If the testator wishes for the gift to pass to the deceased child\'s issue, he must include an express clause in the will indicating so. Andrew Yip (17:04.334) You must also consider the profile of beneficiaries when drafting the will. There are considerations and consequences of gifting certain types of immovable property where the beneficiary is not a Singaporean or owns HDB property. Please refer to Section 3 of the Residential Property Act and to Section 59 of the Housing and Development Act. Other points to note is the avoidance of partial interstacy. Partial interstacy can arise where will does not name executors or where all executors have predeceased the testator and the will does not name any substitute executor. In such cases, a grant of Letters of Administration with will annexed instead of a grant of probate will have to be applied for. Please see Section 13 of the Probate and Administration Act on who should apply for a Letters of Administration with will A partial intestacy can also arise where the will does not dispose of some part of the testator\'s estate which is capable of passing under a will or did not provide for a Residuary Clause to deal with assets not specifically disposed of. The beneficiaries of such undisposed assets are those persons who take upon the intestacy of the testator. Please see Section 10 of the Intestate Succession Finally, you may encounter a testator who, for whatever reason, wishes to not provide for his child in his will. Are there any consequences for such an arrangement? Well, please note the Inheritance Family Provision Act, which allows for certain dependents to apply to alter the distribution of the deceased estate for the maintenance of a dependent not provided for under a will. This Act does not apply to parents, or illegitimate children of the deceased. Andrew Yip (19:04.972) We now move on to the taking of instructions in wheel drafting. As held by the Court of Appeal in Loh A Chiao and Ng Kok Wan, there ought to be no room for even the slightest doubt or the slightest possibility of a mistake on the part of a solicitor in both understanding the testator\'s intention and expressing their intention in the wheel to be drawn up. These are some important questions to ask yourself as a lawyer taking instructions and drafting a wheel. Firstly, Can I act for the client? Please refer to Rule 25 of the Legal Profession, Professional Conduct Rules 2015. A solicitor on law practice must not act for the client in the drafting of a will, whether solicitor, his partner, director, consultant or employee or their immediate family members will be a beneficiary. Please consider what does the client want to do? Can what he is asking for be done, whether the wheel accurately reflects its intentions, as well as when must the wheel be prepared. Andrew Yip (20:15.522) please always take proper attendance notes. Bear in mind what the Court of Appeal in Loh A Chow and Ng Hoc Guan had to say. In cases where the construction of the terms of a will is contested, it may be necessary to compare the testimony of the solicitor who drafted the will with his attendance notes, since those notes are, or at least should be, a contemporaneous record of the testator\'s instructions. A failure on the drafting solicitor\'s part To keep proper attendance notes and all records may have adverse consequences. This omission could persuade the court to doubt the veracity of the drafting solicitor\'s testimony if a dispute arises as to the purport of the terms of the will. The court may even draw adverse inferences against the drafting solicitor. What should go into your attendance notes for your will preparation and will witnessing? Here are some non -exhaustive examples of facts and details. for you to take note of. You may refer to your reference materials for an example of an attendance notes. In today\'s lecture, we have focused on what happens when there is a will. If a person dies with a will, he is known to be tested. Where a person dies without a will, his estate is known as in -tested. The main difference, of course, is who is in charge and who gets what. As you have seen, with a will, a testator can choose who he wants to put in charge of his estate by choosing his executors. and he also can choose how he wishes to give his estate to his beneficiaries. Andrew Yip (22:01.58) When a testator dies, his estate vests in the executors and they handle the deceased\'s affairs, subject to the production of the grant of probate. In contrast, in an interstacy situation, that is where someone has died without a will, his estate vests in the public trustee until a grant of letters of administration has been obtained by personal representatives called the administrators. The entitlement to the deceased\'s estate is also determined by statute, the Interstate Succession The question of who can be an administrator of an Intestine Estate is determined by the Priority of Entitlement to the Estate as set out in the ISA. The topic of Intestine Succession Act will be covered in more detail in a subsequent lecture. Finally, here are some issues for you to think about and look into before we end today\'s lecture. What happens when a beneficiary dies before the vesting of his interest in an estate? What happens when there are concurrent deaths where it is not possible to determine who has died first? What are the inheritance rights of illegitimate and adopted children? And what is the effect of bankruptcies in relation to succession and administration? With that, I\'ve come to the end of this lecture. Thank you all for your kind attention. B24 PSP - A. SUCCESSION PLANNING IN SINGAPORE - \(a) Wills - Substantive and foprmal requirements of a valid will - s10 WA - **[Gifts]** to attesting witness or to wife or husband of attesting witness to be void - **[An executor can be a witness to a will and can be a beneficiary to a will. The restriction is only as to witness of a will and his/ her spouse from benefiting from under the will.]** - **[Note: Referring to persons in wills]** - **[Note: Properties that cannot be disposed of in a Will/Gifts that fail]** - **[CPF monies]** form a separate estate under section 25 of the CPC CPF Act, so it will not be distributed via the will. It is distributed by nomination. A gift fails if the gifted property does not exist at the testator's death. This is the **[principle of ademption]**. If there is insufficient money to pay cash gifts then the legacies are reduced and this is known as **[abatement]** and each beneficiary takes pari passu. Ademption is where you lose the gift. There is nothing left of it. Abatement is when the gift is reduced. - **[Note: Beneficiaries and Class Gifts]** - **[Note: Profile of Beneficiaries]** - **[Some Succession Issues]** - **s30 Civil Law Act** - Presumption of survivorship in regard to claim to property = **[the more senior one is assumed to have died before the junior]** - **[s26 Wills Act]** - Gifts to children or other issue who leave issue living at testator's death not to lapse **[s26 does not apply to class gifts s26 applies only to parent and child, not unrelated third party]** - s 5 -- 10 of the Legitimacy Act = The right tot property depends on the relative seniority of the children - s7 Adoption of Children Act - s400 IRDA - Disqualificiation of a bankrupt cannot act as a trustee - B. WILLS -- PREPARATION, EXECUTION AND INTERPRETATION - 3\. Will formalities - **[s9 Wills Act = Witness must be competent at the time of signing, BUT other requirements under s6 must be met.]** - if there is anything that is not explicable or if there is anything that is out of order ordinary, the court is likely to require you to file an affidavit of due execution or provide affidavits from relevant persons to explain any oddities. My recommendation is that you should require full signature of the testator and the two witnesses at the end of the page in accordance with section 6(2). - **[5. Executors -- who cannot (or should not) be appointed]** - 6\. Properties - \(b) Considerations for certain types of **[immovable property]** - **[(iii) Property subject to mortgages (Section 26 Civil Law Act 1909 ("CLA")) Outstanding mortage to be paid out from the disposed property, unless the Will states that the property is to be received \"unemcumbered\".]** - **[7. Construction of wills]** - \(c) Construction of **[gifts]** under wills (Sections 21, 24, 25 and 26 WA) - s26 - Mark is survived by his own child and therefore inherets from Kim Seng B24 PSP