Succession Planning in Singapore (B24 PSP) PDF

B24 PSP A. SUCCESSION PLANNING IN SINGAPORE \(a) Wills Who can make a will? Substantive and foprmal requirements of a valid will s5 WA - Rules as to formal validity s10 WA - Gifts to attesting witness or to wife or husband of attesting witness to be void When does the will take effect? Typic...

B24 PSP A. SUCCESSION PLANNING IN SINGAPORE \(a) Wills Who can make a will? Substantive and foprmal requirements of a valid will s5 WA - Rules as to formal validity s10 WA - Gifts to attesting witness or to wife or husband of attesting witness to be void When does the will take effect? Typical clauses in a Will The Start Commencement Revocation Appointment of executor(s) & trustee(s) Appointment of guardian(s) The Main Body Specific gift(s) Residuary gift(s) - \"Catch all\" The End of the Will Testimonium Attestation Note: Referring to persons in wills Note: Properties that cannot be disposed of in a Will/Gifts that fail Note: Beneficiaries Note: Profile of Beneficiaries Avoidance of **[partial intestacy]** s13 Probate and Administration Act s10 Intestate Succession Act Failure to provide for the **[welfare of the deceased\'s dependants]** Comparing some differences in intestate and testate estates Some Succession Issues s30 Civil Law Act - Presumption of survivorship in regard to claim to property s26 Wills Act - Gifts to children or other issue who leave issue living at testator's death not to lapse s 5 -- 10 of the Legitimacy Act s7 Adoption of Children Act s400 IRDA - Disqualificiation of a bankrupt \(b) Inter vivos gifts \(c) Lasting Powers of Attorney \(d) Trusts \(e) Family Office B. WILLS -- PREPARATION, EXECUTION AND INTERPRETATION 1\. Types of wills 2\. Who can make a will? 3\. Will formalities 4\. Testamentary capacity 5\. Executors -- who cannot (or should not) be appointed 6\. Properties \(a) Joint tenancies of immovable property \(b) Considerations for certain types of immovable property \(c) Joint bank accounts \(d) Central Provident Fund monies \(e) Revocable nomination of insurance policy proceeds under Part 3C of the Insurance Act 1966 ("IA") for policies after 1 September 2009 7\. Construction of wills \(a) Overriding **[aim of court]** in construction of wills \(b) Relevance of **[evidence from lawyer]** assisting in drafting and execution of the will \(c) Construction of **[gifts]** under wills (Sections 21, 24, 25 and 26 WA) \(d) **[Subsequent conveyance]** does not prevent operation of the will (Section 18 WA) \(e) **[Ambulatory]** nature of wills (Section 19 WA) \(f) When beneficiaries **[predecease]** the testator (Sections 20, 23 and 26 WA) \(g) **[Ademption]** (Low Gim Har v Low Gim Siah \[1992\] 1 SLR(R) 970 at \[57\]--\[59\]) \(h) **[Abatement]** (where the assets are insufficient to fulfil all the debts, expenses, and gifts in full) 8\. Taking **Instructions** to prepare a will \(a) Domicile of testator \(b) Testamentary capacity of the testator \(c) Declaration of testamentary intention \(d) **[Revocation]** of prior wills and codicils ) \(e) Appointment(s) of executor(s), trustee(s), and guardian(s) \(f) **[Disposition of property]**: legacies (specific and general) and devises, and gift-overs (Note any particular system of law which may apply to the property, e.g., immovable property in a foreign country) \(g) **[Residuary]** clauses (Ensure that there is no partial intestacy arising under the will, and what happens where there is partial intestacy -- see below on the Intestate Succession Act 1967 ("ISA")) \(h) **[Powers]** and directions to executors and trustees; implied powers of trustees in the Trustees Act 1967 ("TA") Part 3 and Section 35(1) CLPA \(i) **[Testimonium]** clause \(j) Attestation clauses variations (where testator is unable to sign, or cannot understand English, or signs with a non-English language, or is blind 9\. Conflicts of interest, ethical issues, and professional negligence \(a) Risk of conflict of interest \(b) Professional negligence 10\. Post execution of will \(a) Practical pointers after execution \(b) Rectification of error \(c) Revocation of wills (Sections 13, 14 and 15 WA) \(d) Alterations to wills (Section 16 WA) \(e) Relevant provisions in the CLA pertaining to wills (Sections 23 to 27, and 30 CLA) C. INTESTACY Without a Will 1\. Scope of application of the Intestate Successioin Act (**[ISA]**) \(a) Sections 2 Legitimacy Act 1934 \(a) Sections 3 Legitimacy Act 1934 \(a) Sections 10 Legitimacy Act 1934 -Right of illegitimate child and mother of illegitimate child to succeed on intestacy of the other \(b) Section 7(2) Adoption of Children Act 1939 (or Section 47 Adoption of Children Act 2022 upon its coming into effect) s6 ISA - Persons held to be similarly related to the deceased Chng Heng Tee v Estate & Trust Agencies (1927) Ltd \[2010\] 1 SLR 681 s7 of the ISA - **[Rules]** of distribution instestatcy susccession 2\. Issues of illegitimate, adopted, and foster children Legitimate child; Legitimated child AAG v Estate of AAH \[2010\] 1 SLR 0769 (Court of Appeal) Step-child Step-children - Low Guang Hong David Foster child **[s9 ISA]**- -Exclusion of the Hotchpot Rule **[s10 ISA]** - Partial Intestacy c/f from s24 Civil Law Act s27 ISA - Bonavicantia estates Summary distribution Adopted child "Disowned" child 3\. Concept of "half blood" and "whole blood" and priority of distribution s6 ISA - Persons held to be similarly related to deceased Whole blood v half-blood Chng Heng Tee (alias Cheng Kim Tee) and another v Estate & Trust Agencies (1927) Ltd \[2010\] 1 SLR 681: Battle of the Bloods 14 Advantageoues of havng a Will 1: Right to choose one\'s beneficiaries and determine their legacies. 2: Ability to choose the Executor and Trustee of one\'s Will and set the terms of appointment. 3: Minimum number of executors or personal representatives to administer an estate with a beneficiary who is a minor 4: Vesting of deceased\'s estate 5: Appointment of Guardians for infant children 6\. Intestacy: Need to prove deceased\'s religion custom, personal law and ages and share entitlement of the beneficiaries, etc. 7: Shorter time and cheaper to obtain probate vs LA 8 Power to carry on the deceased\'s affairs and calling in of the deceased\'s assets 9: Chain of executorship 10: Administration Bond / Sureties to the Admin Bond 11: Preservation and protection of family wealth 12: Saving of Stamp Duty 13: Right of commencement of legal 14\. Remuneration of the personal representative D. OTHER ISSUES RELATING TO ESTATES 1\. Inheritance (Family Provision) Act 1966 ("IFPA") \(a) Scope of application; IFPA does not apply to Muslims (Section 1 IFPA) \(b) Principles and procedure -- concept of dependent and reasonable provision of maintenance (Sections 2 and 3 IFPA) Who is a **[dependent?]** **[s3 IFPA - Requirements]** to make IFPA Application? s4 and s6 IFPA - **[Time]** limits s3(2) IFPA -Power for court to order payment out of net estate of deceased for benefit of **[surviving spouse or child]** - **[What]** the Court can order under IFPA? 3(5), 3(6), 3(7), 3(8) IFPA **[s5 IFPA]** - Effect of successful IFPA application \(c) Illegitimate children (AAG v Estate of AAH, deceased \[2010\] 1 SLR 769 (CA)) \(d) Interplay between just and equitable division under the Women's Charter 1961 and reasonable provision of maintenance under the IFPA (AOS v Estate of AOT \[2012\] 3 SLR 721 (CA)) ------- ---------------------------------------- Flags Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- ---------------------------------------- 2\. Maintenance of Parents Act 1995 ("MPA") E. PROBATE AND ADMINISTRATION 1\. Introduction and Concepts, Definitions and Terminology 2\. Practical steps to take when someone passes away 3\. Obtaining a grant of representation \(a) Main **[types of grant]** \(i) Grant of **[probate (Testacy)]** Application process with the Courts for non-muslim Application for Grant of Probate Step 1: Origintaing Summons Application for Grant of Probate Step 2: Supporting Affidavit Application for Grant of Probate Step 2A: Supplementary Affidavit Application for Grant of Probate Step 3: Grant Issued After grant of probate \(ii) Grant of **[letters of administration (Intestacy)]** **[Letters]** of Administration \[STEPS\] **[When]** to apply? Application **[process]** Application **[procedure Step 1 - Originating Summons]** Application **[procedure Step 2 - Supporting Affidavit]** Application **[procedure Step 2A - Supplementary Affidavit]** Application for Letters of Administration Step 3: **[Sureties]** and Administration Bond Application for Letters of Administration Step 3A: **[Dispensation of Sureties]** Letters of Administration **[Step 4: Court issues Grant of letters of administration]** \(iii) Grant of **[letters of administration with will annexed (Section 13 PAA)]** \(iv) **[Re-sealing]** grant of representation **[When]** to apply? Application for **[Re-sealing Step 1: Originating Summons]** Application for Letters of Administration for Resealing step 2: Supporting Affidavit Application for Letters of Administration for Resealing step 2A: Supplemntary Affidavit Application for Letters of Administration for Resealing Step 3: Sureties and Administration Bond Application for Letters of Administration for Resealing Step 3A: Dispensation of Sureties Application for Letters of Administration for Resealing **[Step 4: Court issues Memorandum of Resealing]** **[Amendment to the Schedule of Assets]** \(v) Other types of grants Which **[type]** of grant to Apply for? **[When to apply]** for Grant of Probate? \(b) **[Probate]** Jurisdiction of Family Justice Courts (namely, the Family Division of the High Court and the Family Court) \(c) Deceased died domiciled outside Singapore 4\. **[Non-Contentious]** Applications \(a) Entitlement to Grant \(b) Clearing off prior rights -- When are renunciations and consents required? \(c) Procedural Steps to be complied with for the filing of the application for Grant (Rules 208 and 209 FJR, and Paragraphs 62 to 69 FJCPD and FJCPD Appendix A Form 51) \(d) Procedural steps after filing of the application: \(e) Delay in applying for grant (i.e., if grant is filed more than 6 months after death of the deceased) \(f) Additional Requirements (Rules 208 and 209 FJR, Paragraphs 62 to 67 FJCPD): \(g) Further steps before extraction of Grant: \(h) Extraction of Grant (Rule 237 FJR, Paragraph 70 FJCPD) 5\. Contentious Applications \(a) Probate actions (Rule 252(1) FJR) \(b) Issues arising in probate actions \(c) Commencement of probate actions and procedure \(d) Administration pending trial \(e) Costs 6\. When can personal representatives commence acting for the deceased's estate? \(a) After obtaining the grant of letters of administration \(b) Before obtaining the grant of probate \(c) The Wong Moy exception 7\. The act of one executor could bind the estate and the other executors, but administrators of an estate must act jointly and the act of one administrator cannot bind the estate, unless that act was **[ratified]** by all the administrators F. THE LASTING POWER OF ATTORNEY AND MENTAL CAPACITY ISSUES 1\. Statutory principles 2\. Capacity s3 MCA General Principles s4 MCA - lack of capacity s5 MCA - Criteria for unable to make decision The **[test]** for lack of capacity (**[s4 MCA]**) Re BKR \[2015\] 4 SLR 81 s6 MCA \"best interest\" (**[s6 MCA]**) ------- -------------------------------------------------------------- Flags  Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- -------------------------------------------------------------- **[s6(7) MCA]** 3\. Acts and decisions covered by the MCA Donee\'s Defence (**[s7 MCA]**) ------- ---------------------------------------- Flags Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- ---------------------------------------- 4\. Lasting Power of Attorney ("**[LPA]**") \[1a\] The Donor **[Who]** can create a LPA? Form 1 Form 2 Mode of submission \[1b\] The Donees +-----------------------+-----------------------+-----------------------+ |   | Personal Welfare | Property & Affairs | | | | | |   | | | +-----------------------+-----------------------+-----------------------+ | Powers | Code of Practice, | Code of Practice, | | | Section 8.3 | Section 8.4 | | | | | | | Where P will live | Dealing with | | | | property (subject to | | | Who P will live | restrictions under | | | with | LPA) | | | | | | | Day-to-day care | Opening, closing & | | | decisions (e.g. what | operating bank | | | P will eat, drink, | accounts | | | wear) | | | | | Making payments for | | | What social | general expenses | | | activities to take | (e.g. household, | | | part in | medical expenses; | | | | rent; loans) | | | Handling P's | | | | correspondence | Receiving payments | | | | due to P (e.g. | | | Who P may have | dividends, income, | | | contact with | other financial | | | | entitlements) | | | | | | | | Handling tax | | | | matters | | | | | | | | Purchasing vehicles | | | | or other equipment | +-----------------------+-----------------------+-----------------------+ | Restrictions | Sections 13(2)-(8), | Sections 13(9)-(9A) & | | | MCA | 14, MCA | | | | | | | Cannot make | \* If prohibited by | | | decisions on life­ | Form 1, cannot sell | | | sustaining treatment | property without | | | / treatment | court order | | | preventing a serious | | | | deterioration in | Cannot execute will | | | condition | for donor | | | | | | | Cannot do any act | Cannot execute or | | | to restrain donor | revoke CPF | | | (unless donee has | memorandum, CPF / | | | authority to do so, | insurance nomination | | | it is necessary to | | | | prevent harm to donor | Cannot make cash | | | and it is a | gifts (unless | | | proportionate | expressly authorised | | | response) | in LPA) (note: | | | | Section 14(3), MCA) | +-----------------------+-----------------------+-----------------------+ \[1c\] Certificate issuers \[2\] Procedure Form 1 Form 2 Certificate Issuance & Registration Procedures for Hardcopy documents \[3\] Revocation of LPA \[4\] Activation of LPA 5\. Deputies 1\. Introduction Principles, Best Interests & Other Considerations 2\. Procedure Originating Summons Suporting Affidavit Doctor\'s Affidavit & Medical Report 3\. Relevant Persons Who are \'relevant persons?\' s31 and 32 MCA - Functions and Powers 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. s20(2) read with s22 and s23 - Powers of the Court 4\. Restrictions s25 - Restrictions on powers of deputies s26 - exclusions