Paper 2 Probate, REP, Muslim, Employment, PIPD Paras (Salihin) PDF

PROBATE (#PS)................................................................................. 9 A – Wills à Preparation, Execution and Interpretation............................ 9 1 – Types of Wills................................................................................................................... 9 (a) Nuncupative Wills.......................................................................................................... 9 (b) Mutual Wills................................................................................................................... 9 (c) Joint Wills..................................................................................................................... 10 (d) Soldiers’ Wills.............................................................................................................. 10 2 – Who can make a will?.................................................................................................... 10 (a) s 4 WA.......................................................................................................................... 10 (b) AMLA’s restrictions for Muslims................................................................................. 11 3 – Formalities...................................................................................................................... 11 (a) Execution of the will..................................................................................................... 12 (b) Witnesses...................................................................................................................... 13 (d) Duties and liabilities of solicitors................................................................................ 15 4 – Testamentary capacity.................................................................................................. 16 (a) Establishing the testamentary capacity........................................................................ 16 5 – Executors’ appointment................................................................................................ 23 6 – Properties........................................................................................................................ 25 (a) Joint Tenancies of immovable property....................................................................... 25 (b) Properties held by deceased on constructive or resulting trusts................................. 27 (c) Considerations for certain types of immovable property............................................. 27 (d) Joint bank accounts...................................................................................................... 29 (e) CPF Monies.................................................................................................................. 31 (f) Insurance policies......................................................................................................... 33 (g) Revocable nominations................................................................................................ 35 7 – Construction of Wills..................................................................................................... 36 Construction of gifts under wills........................................................................................ 39 Death of the beneficiaries; predeceasing the testator....................................................... 41 Ademption / Abatement à Insufficient assets................................................................... 43 Donatio Mortis Causa – whether precluded by the WA.................................................... 43 8 – Taking instructions to prepare for a will..................................................................... 44 9 – Conflicts of interests, ethical issues and professional negligence.............................. 44 (a) Risks of conflict of interest........................................................................................... 44 Gifts from clients................................................................................................................ 47 Professional Negligence.................................................................................................... 48 10 – Post execution of the will............................................................................................. 53 B – Intestacy.................................................................................................. 54 1 – Scope of Application of ISA.......................................................................................... 54 2 – Illegitimate, adopted and foster children..................................................................... 57 Illegitimate children........................................................................................................... 57 Adopted children................................................................................................................ 58 Stepchildren....................................................................................................................... 59 Half Blood.......................................................................................................................... 59 C – Probate and Administration.................................................................. 60 Definitions............................................................................................................................. 60 Practical steps to take when someone passes away........................................................... 60 3 – Obtaining a Grant of Representation.......................................................................... 62 (a) Main types of grant...................................................................................................... 62 (b) Preliminary Considerations......................................................................................... 65 4 – Non-Contentious Applications...................................................................................... 66 (a) Entitlement to Grant..................................................................................................... 66 (b) Clearing off prior rights – when are renunciations and consent required?................ 68 (c) Procedural Steps.......................................................................................................... 70 5 – Contentious Applications.............................................................................................. 93 (a) Probate Actions............................................................................................................ 93 (b) Issues............................................................................................................................ 93 (c) Burden of proof.......................................................................................................... 100 (d) Commencement of probate actions and procedure.................................................... 102 Muslim Family Law (#ML)............................................................. 139 A – Muslim Marriages................................................................................ 139 1 – AMLA........................................................................................................................... 139 1.1 Muslim Law in Singapore.......................................................................................... 139 1.2 Application of AMLA................................................................................................. 139 2 – Syariah Court............................................................................................................... 140 2.1 Jurisdiction................................................................................................................ 140 2.2 Personal jurisdiction.................................................................................................. 141 2.3 Territorial jurisdiction............................................................................................... 142 2.4 Subject matter jurisdiction......................................................................................... 143 2.5 Residual Jurisdiction of Civil Courts......................................................................... 143 2.6 Concurrent Jurisdiction............................................................................................. 143 2.7 Powers of SYC........................................................................................................... 146 3 Divorces and Ancillary orders....................................................................................... 149 4 Muslim Inheritance......................................................................................................... 152 Real Estate Practice (#REP)............................................................. 158 Introduction................................................................................................. 158 Registration of Deeds......................................................................................................... 159 Torrens System.................................................................................................................. 159 Transaction structures...................................................................................................... 159 Financing an asset purchase........................................................................................... 159 Transfer of real estate ownership..................................................................................... 160 1 – Preliminary Matters............................................................................. 161 Parties................................................................................................................................. 161 First steps......................................................................................................................... 161 Taking instruction – Attendance Notes............................................................................ 161 Capacity........................................................................................................................... 163 1.2 Types of property......................................................................................................... 164 1.2.1 Residential Property............................................................................................... 164 Strata Title Property........................................................................................................ 166 Deceased Owners – s 35(2) CLPA.................................................................................. 166 CPF Monies..................................................................................................................... 166 Stamp Duty....................................................................................................................... 166 GST.................................................................................................................................. 168 1.3 Nature of the Transaction........................................................................................... 168 1.4 Master Plan.................................................................................................................. 168 1.5 Contracts....................................................................................................................... 168 Conclusion....................................................................................................................... 168 2 – Searches and Investigation of Title...................................................... 169 2.1 What is a title search?................................................................................................. 169 Contents of a search........................................................................................................ 169 Importance of searches – transactions at an undervalue................................................ 170 2.2 Solicitor’s Undertaking............................................................................................... 170 2.3 Good Root of Title........................................................................................................ 170 2.3.1 Deducing title.......................................................................................................... 171 Common Law Titles......................................................................................................... 171 Investigating Torrents Title – Land Titles Act................................................................. 171 2.4 Legal Requisitions........................................................................................................ 171 3 – Preparing and Concluding Contracts................................................. 172 3.1 Ways to Conclude a Contract..................................................................................... 172 3.1.1 Option to Purchase................................................................................................. 173 3.1.2 Sale & Purchase Agreement................................................................................... 173 3.2 Major Terms to the Contract..................................................................................... 173 3.3 Law Society’s Conditions of Sale 2020....................................................................... 174 3.4 Stamp Duty................................................................................................................... 174 3.4.1 Buyer’s Stamp Duty (BSD) Calculation................................................................. 174 3.4.2 Seller’s Stamp Duty................................................................................................ 174 3.5 Withholding Tax.......................................................................................................... 175 3.6 GST............................................................................................................................... 175 3.7 Lodging a Caveat......................................................................................................... 176 4 – Sale of a Private Residential Property with legal title issued............ 176 4.1 How to secure a purchaser?........................................................................................ 178 4.2 Who prepares the contract of sale?............................................................................ 178 4.3 Types of Contracts....................................................................................................... 178 4.3.1 Option to Purchase................................................................................................. 179 4.3.2 Sale and Purchase Agreement................................................................................ 179 4.4 Terms of the Contract of Sale..................................................................................... 180 4.5 Non-merger clause....................................................................................................... 182 4.5.1 Unfavourable to Vendor......................................................................................... 182 4.6 Position of Vendor after conclusion of the contract................................................. 182 4.7 Capacities and Number of solicitors.......................................................................... 182 4.8 Duties of the Vendor’s Solicitors................................................................................ 182 4.9 Duties of the Bank’s Solicitors.................................................................................... 185 4.10 Duties of CPF Board’s Solicitors.............................................................................. 185 5 – Mortgages and Withdrawal of CPF Monies....................................... 186 5.1 Financing a purchase of property.............................................................................. 186 5.2 Mortgage....................................................................................................................... 186 5.2.1 Parties to a mortgage............................................................................................. 186 5.2.2 Types of Mortgages................................................................................................. 186 5.2.3 Security Documents................................................................................................ 187 5.2.4 Letter of Offer......................................................................................................... 187 5.2.5 Standard Terms & Conditions................................................................................ 187 5.2.6 Memorandum of Mortgage..................................................................................... 187 5.3 Where Borrower is a Company.................................................................................. 187 5.4 CPF Board’s Statutory Charge.................................................................................. 188 5.5 Process........................................................................................................................... 188 6 – Completion Accounts............................................................................ 188 6.1 Types of Completion Accounts................................................................................... 188 6.1.1 Vendor’s Solicitor to Purchaser’s Solicitor............................................................ 188 6.1.2 Vendor’s Solicitors to Vendor................................................................................. 191 6.1.3 Purchaser’s Solicitors to Purchasers..................................................................... 192 6.2 Stakeholder Monies..................................................................................................... 193 6.3 Cash Difference (for Vendor)..................................................................................... 194 6.4 CPF Monies (for Vendor)............................................................................................ 194 7 – Completion Process............................................................................... 194 7.1 Who attends Legal Completion?................................................................................ 194 7.2 Where to Complete?.................................................................................................... 194 7.3 Preparations for Legal Completion............................................................................ 195 7.4 Follow Up after Legal Completion............................................................................. 196 8 – Singapore Land Authority................................................................... 197 8.1 SLA................................................................................................................................ 197 8.1.1 Land Survey Division.............................................................................................. 198 8.1.2 Land Titles Registry................................................................................................ 199 8.1.3 Land Dealings Approval Unit................................................................................. 199 8.2 Land Registration........................................................................................................ 199 8.2.1 Common Law (Deeds) System................................................................................ 199 8.2.2 Conversion.............................................................................................................. 199 8.2.3 Land Titles System.................................................................................................. 200 8.2.4 Land Titles (Strata) Act........................................................................................... 200 8.2.5 Share Value............................................................................................................. 200 8.2.6 Development Life Cycle.......................................................................................... 201 8.3 Land Dealings Approval Unit..................................................................................... 201 8.3.1 Restricted Residential Property (“RRP”)............................................................... 201 8.3.2 Non-restricted Residential Property....................................................................... 201 8.3.3 Foreign Person....................................................................................................... 202 8.4 e-Registry...................................................................................................................... 202 8.4.1 Electronic Lodgment System................................................................................... 203 8.4.2 Electronic Payment Instructions............................................................................. 203 8.4.3 Going Paperless...................................................................................................... 204 9 – Housing Developers – Uncompleted Property.................................... 205 9.1 What is an ‘uncompleted property’?......................................................................... 205 9.2 Legislation..................................................................................................................... 205 9.3 Prescribed Forms......................................................................................................... 205 9.4 Timeline – Grant of option.......................................................................................... 206 9.5 Timeline – Exercise of Option..................................................................................... 206 9.5.1 Non-exercise of Option........................................................................................... 206 9.6 Payment in Progressive Stages................................................................................... 207 9.7 Delivery of Vacant Possession..................................................................................... 207 9.8 Maintenance Charges.................................................................................................. 207 9.9 Defects Liability Period............................................................................................... 208 9.10 Property Tax.............................................................................................................. 208 9.11 Issuance of Separate Title......................................................................................... 208 9.12 Principal Clauses in Agreement............................................................................... 208 9.13 Financing a purchase................................................................................................. 208 PIPD (#PI)........................................................................................ 210 1 – At the Scene of the Accident....................................................................................... 211 1.1 Immediate steps.......................................................................................................... 211 1.2 GIA – Motor Claims Framework............................................................................... 212 1.3 Reporting Procedures................................................................................................ 212 1.4 At Lawyer’s offiec...................................................................................................... 212 1.5 Repudiation................................................................................................................ 212 1.6 State Courts Practice Directions............................................................................... 212 2 – At the Courts................................................................................................................ 239 2.1 Pre-Writ considerations............................................................................................. 239 2.2 Matters in Court......................................................................................................... 241 Employment Law (#EL).................................................................. 245 1 – Overview of Key Legislations............................................................... 247 1.1 The Employment Act................................................................................................... 247 1.2 Key Statutes / Regulations.......................................................................................... 247 2 – Classes and Categories of Employees.................................................. 247 2.1 Categories of ‘employee’............................................................................................. 248 2.2 Part IV of the EA......................................................................................................... 248 2.3 Foreign Employees....................................................................................................... 248 3 – Statutory Rights and Obligations of Employees and Employers..... 248 3.1 Common Employment Obligations............................................................................ 248 3.1.1 Types of Leave........................................................................................................ 248 3.1.2 Termination and Retrenchment/Redundancy.......................................................... 249 3.1.3 Retirement and Re-employment.............................................................................. 249 3.2 Data Protection............................................................................................................ 249 3.3 Workplace Health and Safety..................................................................................... 250 4 – The Employment Contract: Express, Implied and Variation of Terms....................................................................................................................... 250 4.1 Express Terms.............................................................................................................. 250 4.2 Implied Terms.............................................................................................................. 251 4.3 Variation of Terms....................................................................................................... 251 5 – Industrial Relations............................................................................... 251 5.1 The Tripartite Partners............................................................................................... 251 5.1.1 Trade Unions.......................................................................................................... 252 5.2 Collective Bargaining.................................................................................................. 252 6 – Maintenance of Relationship – Common Areas of Concerns........... 253 6.1 Harassment, Bullying & Discrimination at Work.................................................... 253 6.1.1 Workplace Harassment and Bullying..................................................................... 253 6.1.2 Anti-Discrimination in the Workplace.................................................................... 253 6.2 Upcoming Legislation on Workplace Fairness......................................................... 253 6.2.1 Overview of Tripartite Committee’s Recommendations......................................... 254 6.3 Performance Management and Misconduct............................................................. 254 6.3.1 Misconduct.............................................................................................................. 255 6.3.2 Due Inquiry............................................................................................................. 255 7 – Cessation of Relationship..................................................................... 256 7.1 Termination of Employment – Grounds................................................................... 256 7.2 Summary Dismissal..................................................................................................... 256 7.2.1 Common Law.......................................................................................................... 256 7.2.2 Other summary termination scenarios................................................................... 257 7.3 Retrenchment / Redundancy...................................................................................... 257 7.4 Protected Classes of Employees.................................................................................. 258 7.5 Wrongful Termination & Remedies.......................................................................... 259 7.5.1 Constructive Dismissal........................................................................................... 259 7.5.2 Claims under the Employment Claims Act............................................................. 259 7.5.3 Claims in the Singapore Court............................................................................... 260 PROBATE (#PS) A – Wills à Preparation, Execution and Interpretation A will is a declaration in writing, made in accordance with the formalities required by Statute, relating to matters which a person wishes to take effect upon or after his/her death. 1 – Types of Wills (a) Nuncupative Wills General rule. Nuncupative (oral) wills are invalid. As stated in the WA, no will shall be valid unless it is in writing and executed in the stipulated manner (WA, s 6(1). Think about a person in hospital informing another of his testamentary wishes. Exception – (i) Soldiers in actual service and (ii) Mariners at sea. Notwithstanding anything in this Act, any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done before the making of this Act and may do so even though under the age of 21 years. (s 27(1)) Tan Pwee Eng. The effect of s 27(1) is to retain the law relating to nuncupative wills prior to 1837, in relation to the narrow group of persons falling within that provision. (b) Mutual Wills Definition. Mutual wills refer to wills made under an agreement, whereby the parties agree not to revoke one’s will without the other’s consent. Mutual wills are usually made by two people pursuant to a separate agreement between them to make the wills and not to revoke them without the consent of the other. Each party would have a separate will making provisions for the other party on substantially similar terms, dealing with the same property. Hiroto Watanabe (Msia HC). Mutual wills are joint or separate wills made as a result of an agreement between the parties to create irrevocable interests in favour of ascertainable beneficiaries. Mutual wills have also been described as wills made by two persons, usually in substantially the same terms and conferring reciprocal benefits, following an agreement between them to make such wills and not to revoke them without the other’s consent. Requirements. To establish a mutual will, a prior agreement by the testators to make mutual wills must be proven. They must have intended their agreement to become irrevocable upon the first person’s death. The fact that the wills were executed at the same time and have the same terms is relevant but not conclusive. Conflict of principle. A mutual will involves both a contract and a will. A contract is enforceable, and parties can sue for breach. A will on the other hand, is revocable at any time Thus, to overcome this conflict, the court found that a mutual will can always be revoked, but this gives rise to an action for breach of contract. On the first person’s death, a trust arises in favour of the beneficiaries of the Will, and if the survivor then revokes his will, this gives rise to proceedings for breach of trust. Held. In this case, the court held that there was indeed a mutual will. The court relied on the following factors: The wills were made at the same time and in almost exactly the same terms The deceased was concerned about her and her children’s future The deceased expressly told the witnesses that there was a promise not to change the will. (c) Joint Wills General. A joint will is a will that is executed by 2 or more persons. The effect is that both parties combine their last Will and Testament, and the surviving party inherits the entire estate when the other passes on. (d) Soldiers’ Wills Notwithstanding anything in this Act, any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done before the making of this Act and may do so even though under the age of 21 years. (s 27(1)) A testamentary disposition of any real estate made by a person to whom this section applies, and who dies after 29th August 1938 shall, notwithstanding that the person making the disposition was at the time of making it under 21 years of age or that the disposition has not been made in such manner or form as was on 29th August 1938 required by law, be valid in any case where the person making the disposition was of such age and the disposition has been made in such manner and form that if the disposition had been a disposition of personal estate made by that person it would have been valid. (s 27(2)) Where any person dies after 29th August 1938 having made a will which is, or which, if it had been a disposition of property, would have been rendered valid by this section, any appointment contained in that will of any person as guardian of the infant children of the testator shall be of full force and effect. (s 27(3)) This section shall extend to any member of any naval or marine forces not only when he is at sea but also when he is so circumstanced that if he were a soldier he would be in actual military service within the meaning of this section. (s 27(4)) For the purposes of this section, “soldier” includes a member of an air force. (s 27(5)) 2 – Who can make a will? (a) s 4 WA General. No will made by any person who is under the age of 21 shall be valid (s 4). Exceptions. Soldiers and mariners at sea (see above). (b) AMLA’s restrictions for Muslims AMLA provides that a Muslim only will away a certain portion of their extent, and not in its totality. 3 – Formalities Applicable law as to formal validity (s 5 WA) This section shall take effect notwithstanding any other provisions of this Act. (s 5(1)) Must conform with law at respective territories. A will shall be treated as properly executed if its execution conformed to the internal law in force — o in the territory where it was executed; (s 5(2)(a)) o in the territory where the testator was domiciled at the time — § when the will was executed; or (s 5(2)(b)(i)) § of his death; (s 5(2)(b)(ii)) o in the territory where the testator habitually resided at either of the times referred to in paragraph (b); or (s 5(2)(c)) o in the state of which the testator was a national at either of the times referred to in paragraph (b). (s 5(2)(d)) Exceptions. Without prejudice to subsection (2), the following shall be treated as properly executed: o Onboard vessel. a will executed on board a vessel or an aircraft of any description, if the execution of the will conformed to the internal law in force in the territory with which, having regard to its registration (if any) and other relevant circumstances, the vessel or aircraft may be taken to have been most closely connected; (s 5(3)(a)) o Immovable property = where it was located. a will so far as it disposes of immovable property, if its execution conformed to the internal law in force in the territory where the property was situated; (s 5(3)(b)) o a will so far as it revokes a will which under this Act would be treated as properly executed or revokes a provision which under this Act would be treated as comprised in a properly executed will, if the execution of the later will conformed to any law by reference to which the revoked will or provision would be treated as properly executed; (s 5(3)(c)) o a will so far as it exercises a power of appointment, if the execution of the will conformed to the law governing the essential validity of the power. (s 5(3)(d)) A will so far as it exercises a power of appointment shall not be treated as improperly executed by reason only that its execution was not in accordance with any formal requirements contained in the instrument creating the power. (s 5(4)) Alterations in law = may render a will proper. In determining for the purposes of this section whether or not the execution of a will conformed to a particular law, regard shall be had to the formal requirements of that law at the time of execution, but this shall not prevent account being taken of an alteration of law affecting wills executed at that time if the alteration enables the will to be treated as properly executed. (s 5(5)) Where a law in force outside Singapore falls to be applied in relation to a will, any requirement of that law whereby special formalities is to be observed by testators answering a particular description, or witnesses to the execution of a will are to possess certain qualifications, shall be treated, notwithstanding any rule of that law to the contrary, as a formal requirement only. (s 5(6)) The construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will. (s 5(7)) Where under this section the internal law in force in any territory or state is to be applied in the case of a will, but there are in force in that territory or state two or more systems of internal law relating to the formal validity of wills, the system to be applied shall be ascertained as follows: o if there is in force throughout the territory or state a rule indicating which of those systems can properly be applied in the case in question, that rule shall be followed; or (s 5(8)(a)) o Close connection test. if there is no such rule, the system shall be that with which the testator was most closely connected at the relevant time, and for this purpose the relevant time is the time of the testator’s death where the matter is to be determined by reference to circumstances prevailing at his death, and the time of execution of the will in any other case. (s 5(8)(b)) This section shall not apply to a will of a testator who died before 26th June 1992 and shall apply to a will of a testator who dies after that date whether the will was executed before or after that date. (s 5(9)) (a) Execution of the will Must be in writing. No will shall be valid unless it is in writing and executed in the manner mentioned in subsection (2). Must be signed. (Anywhere, except above dispositions or directions) (s 6(2)). Attestation is not necessary. Writing. No will shall be valid unless it is in writing and executed in the manner mentioned in subsection (2). (s 6(1)) Signature requirement. Every will shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction, and the signature shall be made or acknowledged by the testator as the signature to his will or codicil … but no form of attestation shall be necessary. (s 6(2)) Every will shall, as far only as regards the position of the signature of the testator, or of the person signing for him as mentioned in subsection (2), be deemed to be valid under this section if the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will; and no such will shall be affected by the circumstance — o that the signature shall not follow or be immediately after the foot or end of the will; (s 6(3)(a)) o that a blank space shall intervene between the concluding word of the will and the signature; (s 6(3)(b)) o that the signature shall be placed among the words of the testimonium clause or of the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses; (s 6(3)(c)) o that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature; or (s 6(3)(d)) o that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature. (s 6(3)(e)) The enumeration of the circumstances under subsection (3) shall not restrict the generality of that subsection; but no signature under this Act shall be operative to give effect to any disposition or direction which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made. (s 6(4)) (b) Witnesses Will must be signed in simultaneous presence of at least 2 witnesses WA, s 6(2) Attestation is not necessary … the signature shall be made or acknowledged by the testator … in the presence of two or more witnesses present at the same time, and those witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. Facts: Deceased’s solicitors helped testator draft new will, but it was witnessed Cheo Yeoh by only 1 person (the solicitor). (2015) SGCA Held: Will invalid. Witness cannot be beneficiary or beneficiary’s spouse, or gift will be void WA, s 10 (unless there are sufficient witnesses who are not beneficiaries or beneficiaries’ spouses) Otherwise, beneficiary or beneficiary’s spouse can otherwise be witness If any person attests the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift or appointment of or affecting any real or personal estate, other than and except charges and directions for the payment of any debt, shall be thereby given or made, the devise, legacy, estate, interest, gift or appointment shall, so far only as concerns the person attesting the execution of the will, or the wife or husband of that person, or any person claiming under that person or wife or husband, be utterly null and void. (s 10(1)) The attesting witness referred to in subsection (1) shall be admitted as a witness to prove the execution of the will or to prove the validity or invalidity thereof, notwithstanding the devise, legacy, estate, interest, gift or appointment mentioned in the will. (s 10(2)) The attestation of a will by a person to whom or to whose spouse there is given or made any disposition as is described in subsection (1) shall be disregarded for the purposes of that subsection if the will is duly executed without his attestation and without that of any other such person. (s 10(3)) Subsection (3) shall apply to the will of any person dying after the passing of the Wills (Amendment) Act 1992, whether executed before or after the passing of that Act. (s 10(4)) Witness can be executor WA, s 12 No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of the will or to prove the validity or invalidity thereof. Witness can be creditor or creditor’s spouse WA, s 11 In case by any will any real or personal estate shall be charged with any debt, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of the will, the creditor notwithstanding the charge shall be admitted a witness to prove the execution of the will or to prove the validity or invalidity thereof. Will not invalidated by witness’s incompetency WA, s 9 If any person who attests the execution of a will shall, at the time of the execution thereof or at any time afterwards, be incompetent to be admitted a witness to prove the execution thereof, the will shall not on that account be invalid. (d) Duties and liabilities of solicitors Will preparation Low Ah Cheow. Facts: The will was drafted, appointing the testator’s third son as the sole executor, trustee and beneficiary. It was impossible at law for one to be a trustee for one’s self only, and simpler to simply appoint the sole beneficiary as the executor (and not trustee). Held: The will should be construed to mean that the third son was the sole executor and trustee, to distribute in accordance with ISA à he was not taken to be the sole beneficiary. 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 (“the drafting solicitor”) 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/or 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. A will is one of the most important legal documents an individual can execute. It often embraces assets which an individual took a lifetime to amass, and which have incalculable sentimental value. There should be no room for even the slightest doubt or the slightest possibility of mistake on a solicitor’s part, in both understanding the testator’s intention and expressing that intention in the will. The preparation of a will involves serious professional responsibilities, which solicitors must uncompromisingly observe and discharge. It should not be a routine exercise in form-filling. The solicitor should thoroughly discuss all possible legal issues and potential complications, and painstakingly and accurately document his discussions and instructions. He should confirm that the will’s contents accurately express the testator’s intention. A translation, if required, must be thoroughly and competently done. Half- measures or cutting corners will not do. The solicitor should also conscientiously seek to avoid being in any situation where a potential conflict of interest may appear to exist. The solicitor must be nothing less than a completely independent adviser. Exceptional restraint and care are called for, if the solicitor has a pre-existing relationship or past dealings with the beneficiary, especially if the will is prepared urgently and executed under unusual circumstances with that sole beneficiary’s active involvement. Execution of the will Cheo Yeoh – 1 witness case. Solicitor must ensure due execution of the will. Facts: Deceased’s solicitors helped testator draft new will, but it was witnessed by only 1 person. Deceased’s ISA beneficiaries sued solicitors for loss in professional negligence. Held: Solicitors were negligent. If Registrar has doubts about due execution of will, he must require FJR, r 211 affidavit as to due execution from any person present at will’s execution Where a will contains no attestation clause or the attestation clause is insufficient or where it appears to the Registrar that there is some doubt about the due execution of the will, he shall, before admitting it to proof, require an affidavit as to due execution — o from one or more of the attesting witnesses; or (r 211(1)(a)) o if no attesting witness is conveniently available, from any other person who was present at the time the will was executed. (r 211(1)(b)) If no affidavit can be obtained in accordance with paragraph (1), the Registrar may, if he thinks fit having regard to the desirability of protecting the interest of any person who may be prejudiced by the will, accept evidence on affidavit from any person the Registrar may think fit to show that the signature on the will is in the handwriting of the deceased, or of any other matter which may raise a presumption in favour of the execution of the will. (r 211(2)) The Registrar, after considering the evidence — o must, if he is satisfied that the will was not duly executed, refuse probate and order accordingly; or (r 211(3)(a)) o may, if he is doubtful whether the will was duly executed, refer the matter to the Court. (r 211(3)(b)) If Registrar wants to satisfy himself as to (1) execution of will by FJR, r 215 blind/illiterate testator (2) terms, conditions and date of execution of will (3) attempted revocation of will, he can require affidavit from any person The Registrar may require an affidavit from any person he may think fit for the purpose of satisfying himself as to any of the matters referred to in rules 212, 213 and 214. (r 215(1)) Where an affidavit referred to in paragraph (1) is sworn by an attesting witness or other person present at the time of the execution of a will the deponent must depose to the manner in which the will was executed. (r 215(2)) 4 – Testamentary capacity (a) Establishing the testamentary capacity General. The testator must have testamentary capacity. Held: George Vadakathu The legal requisites of testamentary capacity in Banks v Goodfellow (1870) EWCA were: o Nature. The testator understands the nature of the acts and its (2009) SGHC consequences [29a] per Chan CJ o Extent of his property. The testator knows the extent of his property which he is disposing of [29b] o Beneficiaries’ Identity. The testator knows who his beneficiaries are and can appreciate their claims to his property [29c] o Mentally sound. The testator is free from an abnormal state of mind (eg delusions) that might distort feelings or judgments relevant to making the will [29d] Presumptions: o Insane = Presumption. Where the testator is subject to an insane delusion, there is a presumption against testamentary capacity [32a] o Where a condition (of insane delusion) exists, it may be difficult to tell whether it exists in some other form (eg schizophrenia instead of dementia) [32b] o It may be equally difficult to tell how far the delusion influenced the testator in the particular disposal of his property [32c] o Giving to stranger = strong presumption. The presumption against a will made under such circumstances (of insane delusion) becomes additionally strong if the will is inofficious, ie testator disregards the element of natural affection and the claims of near relationship, eg gives all property to a stranger [32d] o If the delusion did not affect the general faculties of the mind, and had no effect on the will, the will is good [32e] o Reasonable will = weakens presumption. The rationality of the will supports the finding that, despite dormant delusions, the testator was in possession of his faculties when executing his will [32f] o If the testator suffered serious mental illness before executing his will, a presumption arises that it continued, and the testator lacked testamentary capacity. o Improvement in mental condition, or lapses in condition. This can be rebutted by establishing that the testator made the will during a lucid interval, or after recovering from the illness. The serious mental illness must be sufficient to cause testamentary incapacity. The more serious the illness, the higher the threshold of proof. Burden of proof: o The burden of proving testamentary capacity lies on the party propounding the will. Expert evidence: o Where the expert witnesses disagreed, the court could place greater weight on factual witnesses. o The court had to decide the issues, not let the experts decide. Application to the facts: o In the absence of strong evidence of testamentary incapacity, the rationality of the will was indicative of testamentary capacity. [65-69] The presumption against testamentary capacity was rebutted. Held: Muriel Chee (2010) SGCA For a will to be valid, the testator must: o Have the mental capacity to make a will [37a], ie the testator must § Nature. Understand the nature of the act and its consequences [37a] § Extent of his property. Know the extent of the property which he is disposing of [37b] § Beneficiaries’ identity. Know who his beneficiaries are and appreciate their claims to his property [37c] § Mentally sound. Be free from an abnormal state of mind (eg delusions) that might distort feelings or judgments relevant to making the will [37d] o Knowledge. Have knowledge and approval of the contents of the will [37b] o Free from undue influence. Be free from undue influence or the effects of fraud [37c] Testamentary capacity: presumptions: TLDR: If executed ordinarily and testator was not known to have mental illness, then presumed to be of capacity. To disprove, must show mental illness – threshold is whether he can make decision on his own. o Presumption of capacity. Testamentary capacity can be prima facie established if the will was duly executed in ordinary circumstances and the testator was not known to suffer mental disability. An indication of testamentary capacity is the will’s rationality (eg its terms and beneficiaries). o Rebut presumption by proving mental illness. The presumption can be rebutted by contrary evidence, eg that the testator was suffering from a mental illness serious enough for the court to find testamentary incapacity. o The court must consider the evidence as a whole. If a testator is shown to have suffered an incapacitating mental illness resulting in testamentary incapacity before executing the will, it can be presumed that the testator continued to lack testamentary capacity up till the will’s execution. The inquiry is whether a lack of testamentary capacity can be inferred from the existence of the mental illness, and whether the testator was nonetheless lucid when executing the will. The severity of the illness may influence the threshold of proof. o MCA + Common law = Consistent; whether he can make a decision. The MCA is consistent with the common law. S 4(1) makes it clear that the determinative issue is whether the person can make a decision for himself, despite suffering from an impairment or disturbance in the functioning of the mind. The medical condition itself does not conclude the matter. Knowledge and approval of will’s contents: presumptions: o Presumption à Capacity = Knowledge. Once testamentary capacity is established, a rebuttable presumption arises that the testator knew and approved of the contents when executing the will. o But, Suspicious circumstances may prevent the presumption from arising. However, the presumption does not arise where there were circumstances surrounding the will’s execution which raise a well-grounded suspicion that the will did not express the testator’s mind. Only circumstances which are relevant to the preparation and execution of the will should be considered. This includes contemporaneous and possibly subsequent events, ie all forms of suspicious circumstances. There is no magical formula, fixed criteria. One oft-cited example is where a will was prepared or procured by a person who takes a substantial benefit under it, eg by suggesting the terms to the testator or instructing the solicitor. o If no presumption, must show knowledge – whether the will was read over to the testator. Where no presumption arises, the propounder must produce affirmative evidence of the testator’s knowledge and approval. Typically, evidence that the will was read over by or to the testator; evidence that the testator gave instructions and the will was drafted in accordance with those instructions. Eg a widow who alone gave instructions without the aid of notes, spoke to banker about terms. o If there exists a presumption, consider any other evidence to rebut the presumption. o The court should not be concerned with the will’s fairness or equity per se if it represented the testator’s intentions. Burden of proof: o The propounder of the will bears the burden of proving that the testator possessed testamentary capacity and knowledge and approval of the will’s contents. Expert evidence: o This inquiry remains a judicial function. Medical evidence is often necessary but conflicting. Application to the facts: o Testamentary capacity: § The propounder did not discharge her burden, as her medical evidence was weak and her non-medical evidence was rejected. o Knowledge and approval of will’s contents: § Onset of dementia, failure to fully understand. The propounder did not discharge her burden. Under ordinary circumstances, reading a will to a testator not suffering from any mental infirmity is sufficient evidence, but this general principle does not apply to a testator who might not have full understanding due to onset of dementia. § The will’s provisions were extraordinary (Caroline and Paul were recorded to have bought a half-share in the land at a discount, and were given an option to buy the other half-share at market rate determined by independent valuers, failing which it would be sold on the open market; Paul was to fully indemnify the estate for mortgage liability). It read more like an exercise in justifying a settlement of past unequal treatment or an equalisation of inheritance. Held: Lian Kok Hong (2016) SGCA Balance of probabilities. The standard of proof is balance of probabilities. The lightness or gravity of the suspicions aroused by the circumstances determines the amount of evidence required to dispel the suspicions. The suspicion may be slight and easily dispelled or it may be so grave that it can hardly be removed. It is not the law that reading or even explaining the terms of a will to a testator is a mandatory requirement. It is no doubt the best way to show that the testator understood the terms of the will (assuming he had testamentary capacity, and his mind was not unduly influenced by some party or event). Held: UAM (2017) SGHCF No presumption given suspicious circumstances. The plaintiff did not discharge his burden of proving that the 1981 Will was valid. The rebuttable presumption (knowledge) that the mother knew and approved the contents of the 1981 Will did not arise because there were highly suspicious circumstances surrounding the execution of the will. The plaintiff, who clearly obtained a substantial benefit from the 1981 Will as the sole named beneficiary, had brought the mother to meet with lawyers concerning the will on two occasions, with the mother executing two other legal documents, one of which was patently inconsistent with the 1981 Will. Additionally, the plaintiff was, during that relevant period, taking steps to have his family members transfer their respective shares of the Property to him. Against the context of the plaintiff being such an interested party, it was highly suspicious when the plaintiff played such a pivotal role in the execution of the 1981 Will. Thus, Claimant had the BOP. Without the presumption of testamentary capacity, the plaintiff bore the burden of proving that the mother knew and approved the contents of the 1981 Will. Although it was usually likely that a will that is professionally prepared by a solicitor, duly executed and read over to the testator before signing represented the testator’s instructions, the unusual circumstances of an inconsistent document signed two weeks earlier called into question whether the mother truly knew and approved the contents of the 1981 Will. The plaintiff thus had to adduce further evidence as affirmative proof that the mother knew and approved of the contents of the 1981 Will. The plaintiff failed to meet this evidential burden. Close relationship alone is insufficient. The plaintiff’s argument that his close relationship with his mother explained why the mother wanted to bequeath her share of the Property to him was not persuasive: while a close relationship could explain why the mother might want to benefit the plaintiff, it was insufficient, in and of itself, in the present circumstances to show that she intended to do so. In the circumstances, while the mother might have had some general intention to go along with his plans, it was unlikely that she had the specific testamentary intention to do so Held: ULV (2019) SGHCF There was insufficient evidence that T lacked testamentary capacity. Mere bodily ill-health and imperfect memory were not sufficient to vitiate testamentary capacity. Though T had purportedly told two of her children that the appellant had asked her to sign a document which she did not understand, it was not clear that T was referring to the 2008 Will. Other evidence showed that she was lucid well after the execution of the 2008 Will. Given that T had testamentary capacity at the time of making the 2008 Will, she was also presumed to have known and approved of its contents. There were no suspicious circumstances to displace attending or relating to the execution of the will that displaced this presumption. The appellant’s presence at the time the 2008 Will was prepared and signed was not sufficient to constitute a suspicious circumstance; it had to be shown that he had somehow influenced the contents of the will, for example by suggesting terms to T or instructing the solicitor who prepared the will. Contradictory terms of the will. The presumption of knowledge and approval had been rebutted on the evidence for two main reasons. The first was that the provisions of the 2008 Will were on their face contradictory and the evidence did not show that they had been explained to, understood by and approved by T. Clauses 3 and 4 of the will made it sound as though the Flat was a conditional gift. However, the Flat was then included in the residuary clause, which meant that the appellant would acquire the Flat even if the condition was unmet. That would be a perverse outcome, since it removed any incentive for the appellant to comply with T’s wishes. It was very doubtful that this was what T intended. It was also doubtful that these provisions had been explained to T in sufficient detail or clarity so as to enable her to understand and approve them. Testator’s conduct. The presumption of knowledge and approval was also rebutted for a second reason, namely, that T’s conduct towards the appellant and her conversations with other family members suggested that she did not fully grasp the provisions of the 2008 Will, in particular that the appellant would inherit the Flat upon her death. T harboured profound resentment and animosity towards the appellant, appeared anxious to prevent him from acquiring the Flat, and made various attempts to ensure that he would not do so. Taken together, these factors suggested that had T properly understood the effect of the 2008 Will, she would have revoked or amended it. The evidence showed that T did not mean to bequeath the Flat on the appellant and did not realise that she had done so. Assessment of mental capacity BKR (2015) SGCA Held: Where there was an interaction between mental impairment and allegations of undue influence in proceedings under the MCA in which a person’s mental capacity was in issue, the court had to have regard to the actual circumstances in which that person lived, and ought not to adopt a theoretical analysis that overlooked those circumstances. In so far as the words “because of” in s 4(1) of the MCA required that there be shown a causative nexus between a person’s mental impairment and her inability to make decisions, there was no additional requirement that her mental impairment be the sole cause of the inability to make decisions. The required causative nexus would be established even where the person’s inability to make decisions was caused by both her mental impairment and actual circumstance. Cases involving questions of mental capacity under the MCA might be better dealt with in a more inquisitorial and less adversarial mode, ie, with the court directing the inquiry, assisted by an assessor if need be. In particular, it would be sensible for the court to direct parties on the evidence, especially expert evidence, that it requires in order to reach its decision. Also, in any inquiry into a person’s mental capacity, she should be independently examined in consultation with her own doctor rather than have her capacity assessed under cross- examination, and the court ought to appoint the independent expert should parties be unable to agree on the appointment of the expert. Establishing the testamentary intentions of the testator 5 – Executors’ appointment Infant cannot be executor, until after reaching age of majority PAA, s 21 No probate or letters of administration shall be granted to a person while he is an infant. (s 21(1)) Where an infant would, but for his infancy, be entitled to probate or letters of administration, letters of administration with or without the will annexed may, subject to section 6(1), be granted to the guardian of the person and property of the infant, or to such person as the court thinks fit, limited until the infant obtains a grant to himself. (s 21(2)) Where there are 2 or more infant executors or persons so entitled, any grant made under subsection (2) shall be limited until any of them obtains a grant. (s 21(3)) Lunatic cannot be executor, until no longer mentally disordered PAA, s 22 No probate or letters of administration shall be granted to a lunatic or mentally disordered person. (s 22(1)) Where any such person, if he is not mentally disordered, would be entitled to probate or letters of administration, letters of administration with or without the will annexed may be granted to the person to whom the care of his estate has been lawfully committed, or to such person as the court thinks fit, for the use and benefit of the lunatic or mentally disordered person, until he ceases to be mentally disordered and obtains a grant to himself. (s 22(2)) Undischarged bankrupt cannot be executor, except with leave of court IRDA, s 400 In addition to any disqualification under any other written law, a bankrupt is disqualified from being appointed or acting as a trustee or personal representative in respect of any trust, estate or settlement, except with the leave of the Court. (s 400(1)) Any disqualification to which a bankrupt is subject under this section ceases when — o the bankruptcy order against the bankrupt is annulled or rescinded; or (s 400(2)(a)) o the bankrupt is discharged under Part 18. (s 400(2)(b)) Any person who acts as a trustee or personal representative while that person is disqualified by virtue of subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both. (s 400(3)) On failure of executors. (LA granted) PAA, s 13 13.—(1) Where — o (a) no executor is appointed by a will; o (b) the executor or all the executors appointed by will are legally incapable of acting as such, or have renounced the right to act as such; o (c) no executor survives the testator; o (d) all the executors die before obtaining probate or before having administered all the estate of the deceased; or o (e) the executors appointed by any will do not appear and extract probate, LA granted. letters of administration with the will annexed may be granted to such person or persons as the court considers the fittest to administer the estate. (2) A prior right to a grant under subsection (1) shall belong to the following persons in the following order: o (a) a universal or residuary legatee; o (b) a legal personal representative of a deceased universal or residuary legatee; o (c) such person or persons, being beneficiaries under the will, as would have been entitled to a grant of letters of administration if the deceased had died intestate; o (d) a legatee having a beneficial interest; o (e) a creditor of the deceased. Letters of administration with will annexed may be granted to attorney of PAA, s 14 absent executor 14. Where an executor appointed by a will is absent from Singapore, and there is no other executor within Singapore willing to act, letters of administration with the will annexed may be granted to a duly authorised attorney of the absent executor, limited until he obtains probate for himself, and in the meantime to any purpose to which the attorney’s authority is limited. Grant to attorney of absent person entitled to letters of administration PAA, s 15 15. Where any person to whom letters of administration with the will annexed might be granted under section 13 is absent from Singapore, letters of administration with the will annexed may be granted to his duly authorised attorney, limited as described in section 14. 6 – Properties (a) Joint Tenancies of immovable property Property held in joint tenancy survives to survivor – right of survivorship. Lau Siew Kim (2007) SGCA Held: The right of survivorship which is an incident of a joint tenancy has the effect of divesting a deceased joint tenant of his unsevered interest and giving the survivor the entirety of the estate, producing a disproportionate effect. Held: Shafeeg (2010) SGCA The interest of a deceased joint tenant extinguished or disappeared into thin air. Hence, legally, no interest in the property passed to the survivor upon the deceased’s death. Whatever interest the deceased had in the property simply ceased to exist, and the survivor became the sole absolute owner because she would no longer be subject to the right of survivorship. Will cannot sever joint tenancy CLPA, s 35(1) All land shall, so far as regards the transmission and devolution thereof on the death of any person in whom it is vested, whether beneficially or on any trust or by way of mortgage, be deemed to be of the nature of chattels real, and accordingly all the like powers for one only of several joint personal representatives, as well as for a single personal representative, and for all the personal representatives together, to dispose of and otherwise deal with the land, shall belong to the deceased’s personal representatives or representative from time to time, with all the like incidents, but subject to all the like rights, equities and obligations as if the land were a chattel real vesting in them or him, and for the purposes of this section the personal representatives for the time being of the deceased shall be deemed in law his heirs and assigns within the meaning of all trusts and powers. Joint tenancy must be severed by deed (for unregistered land) or instrument CLPA, LTA of declaration in approved form (for registered land) and serving copy on other joint tenants Without prejudice to any rule or principle of law relating to severance of a joint tenancy, a joint tenant may sever a joint tenancy of an estate or interest in land by a deed of declaration and by serving a copy of the deed of declaration personally or by registered post on the other joint tenants. (CLPA, s 66A(3)) Without prejudice to any rule or principle of law relating to severance of a joint tenancy, any joint tenant may sever a joint tenancy of an estate or interest in registered land by an instrument of declaration in the approved form and by serving a copy of the instrument of declaration personally or by registered post on the other joint tenants. (LTA, s 53(5)) However, ultimate survivor can dispose by will Eg: If I outlive my husband, I give the property known as [address] to my son Teck Leong. Chan Yuen Lan Ong Chai Soon (b) Properties held by deceased on constructive or resulting trusts 2 cases Assets in inter vivos trust not part of estate. Will be held by estate in trust Vicky Yap for beneficiaries (c) Considerations for certain types of immovable property Landed Property Landed property cannot pass by bequest to foreign person; if foreign RPA person is beneficially entitled, executor/administrator must sell within 5 years and pay proceeds to foreign person No estate or interest in any residential property belonging to a deceased person who dies on or after 11th September 1973 shall pass by bequest, succession or inheritance to any foreign person who is beneficially entitled under a will or under any written law governing intestate succession. (s 3(3)) Where a foreign person would, but for subsection (3), be beneficially entitled to an estate or interest in residential property, the legal personal representatives to whom probate or letters of administration are granted in respect of such residential property shall, subject to subsection (5), be bound to sell such estate or interest in the residential property to a citizen or an approved purchaser within a period of 5 years from the date of the death of the deceased person, or within any extension thereof allowed under subsection (12), and upon such sale to pay, subject to the law of wills and intestate succession, the proceeds thereof, less any expenses necessarily incurred on such sale or by reason of the administration of a deceased’s estate, to or for or on behalf of the foreign person so beneficially entitled. (s 3(4)) Does not apply to condominiums (s 4) Can apply to Minister for approval to acquire or retain residential property (s 25) HDB Flat HDB flat cannot pass by bequest without HDB’s consent HDA No person can buy an HDB flat if he, his spouse or any authorised occupier owns another HDB flat, or has sold another HDB flat in the last 30 months (s 47) No HDB flat can be used as security or attached, and no trust can be created over an HDB flat, without HDB’s approval (s 51) The transmission on the death of the owner, whether testate or intestate, or any transfer by the personal representatives of a deceased owner of a flat, house or other building that has been sold subject to the provisions of this Part shall not be registered under the provisions of the Registration of Deeds Act or the Land Titles Act without the written consent of the Board. (s 52(1)) Where the Board refuses to give its consent, the Board may lodge an instrument with the Registrar of Deeds or the Registrar of Titles, as the case may be, to have the flat, house or other building vested in the Board. (s 52(1A)) Where — o no representation has been taken out under a will or on the intestacy of a deceased owner of a flat, house or other building within 12 months from the death of the owner; (s 52(2)(a)) o representation has been taken out but the personal representatives do not apply for the written consent of the Board for the transmission or transfer of the flat, house or other building within 6 months from the date of representation; or (s 52(2)(b)) o representation has been taken out and the personal representatives have the written consent of the Board referred to in paragraph (b), but the sale or transfer of the flat, house or other building is not completed within 12 months from the date of that written consent, (s 52(2)(c)) o the Board may lodge an instrument with the Registrar of Deeds or the Registrar of Titles, as the case may be, to have the flat, house or other building vested in the Board. (s 52(2), proviso) Where, on the death of the owner of a flat, house or other building that has been sold subject to the provisions of this Part — o the lease in favour of the owner has not been registered under the provisions of the Registration of Deeds Act (Cap. 269) or the Land Titles Act (Cap. 157); or (s 52(3)(a)) o no representation has been taken out under a will or on the intestacy of a deceased owner of such flat, house or other building within 12 months from the death of the owner, (s 52(3)(b)) o the Board may rescind the agreement for the lease of such flat, house or other building. (s 52(3), proviso) Property subject to mortgage Beneficiary of land cannot claim payment of mortgage debt out of CLA, s 26 testator’s personalty If any person dies or has died seized of or entitled to any estate or interest in any immovable property, which is at the time of his death charged with the payment of any sum or sums of money by way of mortgage, and such person has not by his will or deed or other document signified any contrary or other intention, the devisee to whom such immovable property is devised shall not be entitled to have the mortgage debt discharged or satisfied out of the movable property or any other immovable property of that person. (s 26(1)) The immovable property so charged shall as between the different persons claiming through or under the deceased person be primarily liable to the payment of all mortgage debts with which the same is charged, every part thereof according to its value bearing a proportionate part of the mortgage debts charged on the whole thereof. (s 26(2)) In the construction of the will of any person, a general direction that the debts of the testator shall be paid out of his personal estate shall not be deemed to be a declaration of an intention contrary to or other than the rule contained in this section unless such contrary or other intention is further declared by words expressly or by necessary implication referring to all or some of the testator’s debts or debt charged by way of mortgage on any part of his immovable estate. (s 26(3)) In this section, “mortgage” shall be deemed to extend to any lien for unpaid purchase-money upon any immovable property purchased by a testator. (s 26(4)) Nothing in this section shall affect or diminish any right of the mortgagee of such immovable property to obtain full payment or satisfaction of his mortgage debt, either out of the estate of the person so dying as aforesaid or otherwise. (s 26(5)) (d) Joint bank accounts Gift found on the facts Tang Eng Seng (2003) SGHC Facts: Deceased had a joint time-deposit account with his first grandson. Deceased’s executors and trustees sought determination of whether the money belonged to the deceased’s estate or grandson. Held: Money belonged to deceased’s grandson. From the evidence, it is clear that the grandfather had a close relationship with his first grandson. His children did not know about the accounts. The deceased dealt with the accounts as a matter separate from the estate. He intended to make a gift of the monies in the joint accounts. No gift found on the facts Saylor (2006) Ontario CA, Facts: Deceased had joint account with daughter. discussed in Held: Money belonged to deceased’s estate. Low Gim Siah The father was in control of his finances. He claimed all interest for (2006) SGCA tax purposes. The daughter did not deposit any of her own money. She only drew out cheques on her father’s directions. Bank documents could be strong evidence. But the joint account agreement was not determinative. These documents did not always provide accurate evidence of parties’ intent. Held: Lau Siew Kim (2007) SGCA Where married spouses who contributed jointly to the purchase of a property held that property as legal joint tenants, there was a presumptive inference that the parties intended to hold that property as joint tenants in equity as well. This inference was to be accommodated within the framework of the presumption of advancement. The scope of the presumption should be expanded to include the inference of an intention for the absolute beneficial ownership of the property to be conferred on the surviving joint tenant. Held: Kelvin Lim (2008) SGHC No presumption of advancement arose because although Bee Bee and the defendant were to all intents and purposes living together as husband and wife for four years, nevertheless they were not legally married. Where there was clear evidence of intention of the deceased, there should be no need to apply any presumption of a resulting trust. Only when the court was not able to find any clear intention or if the evidence was inconclusive either way as to what the deceased’s real intention might be, should the court apply the evidential presumption of a resulting trust in favour of the estate of the deceased (who solely contributed the moneys in the joint account). In satisfying the burden of proof, bank documents might have strong evidential value but they did not have legal presumptive value. On a balance of probability, Bee Bee had intended to give the moneys in the joint account to the defendant. There was no need to apply any legal presumption of a resulting trust to help resolve the question of Bee Bee’s intention. The moneys in the joint account belonged both legally and beneficially to the defendant. [128-129] Held: Yang Chun (2019) SGHC The operation of the right of survivorship turned on several successive stages of analysis. A court had to consider if there was a presumption of resulting trust, displacing survivorship, and the strength of that presumption. It then had to determine if the presumption of advancement was applicable, its strength based on the nature and state of the parties’ relationship. Lastly, on the weight of the evidence, did the presumption of advancement rebut a presumption of resulting trust such that the right of survivorship took effect. The principles of survivorship were applicable to joint bank accounts: at and. Mdm Sun and Mr Yang made unequal contributions to the joint accounts. This imposed a presumption of resulting trust in favour of Mr Yang’s estate. However, this presumption was displaced by the presumption of advancement. The presumption of advancement was strengthened by the nature and state of the couple’s relationship and supporting documentary evidence. Beneficial ownership of the joint accounts passed to Mdm Sun upon Mr Yang’s death on the basis of survivorship. (e) CPF Monies Must nominate beneficiary CPF monies: member must nominate beneficiaries using CPF nomination CPF Act, s 25 form; otherwise, it will go to Public Trustee for disposal under ISA Subject to such conditions as may be prescribed by the Board, any member of the Fund who is at least 16 years of age may, by a memorandum executed in such manner as may be prescribed by the Board, nominate any person to receive (the CPF monies) (s 25(1)) Subject to subsection (2A), where, at the time of the death of a member of the Fund, no person has been nominated by him under subsection (1), the total amount payable on his death out of the Fund shall be paid to the Public Trustee for disposal in accordance with the Intestate Succession Act (Cap. 146) … (s 25(2)(a)) Held: Saniah (1990) SGHC The general scheme of the CPF Act is to treat a member’s CPF monies as a species of property separate and distinct from his other property. It cannot be disposed of by a member by any instrument or will, except an instrument of nomination, which unless revoked or varied, takes effect on his death. It is not subject to any levy, sequestration or attachment or payment of any debt. It does not pass to the OA upon bankruptcy. On the member’s death, it does not form part of his estate, nor is it then subject to his debts. Rules as to testamentary capacity apply to CPF nominations; same Leow Li Yoon approach (2015) SGHC Held: The rules on allocation of burden of proof in a dispute over testamentary capacity should apply to a CPF nomination: o A CPF nomination has testamentary characteristics. It has no effect until the CPF account holder’s death, who is free during his lifetime to deal with his share as allowed by statute. o A propounder of a will and a CPF nominee are similarly placed. They both seek for the deceased’s assets to be distributed otherwise than under the ISA. CPF nomination revoked by marriage CPF Act, s 25(5)(a) Any nomination made by a member of the Fund under subsection (1) shall be revoked … by his marriage … S 25(5)(a) only applies to genuine marital relationships Soon Ah See (2016) SGHC The meaning of “marriage” in the CPF Act, s 25(5)(a) should be read down to exclude a marriage such as that in the present case. For the purpose of the CPF Act, s 25(5)(a), Parliament’s intention did not extend to making financial provision for a surviving party to a marriage of convenience or sham marriage, for which it cannot be said that a genuine marital relationship ever existed. Cannot create trust over CPF monies BTB (2018) SGHC Held: In any event, the scheme of the CPF Act did not allow for the inter vivos creation of trusts over CPF moneys. The CPF Act prescribed a fixed methodology for the distribution of CPF moneys. The single inter vivos arrangement allowed was that of a nomination. If no nomination was made prior to a CPF member’s death, the moneys were to be distributed in accordance with intestacy laws. The only statutory exception to this stipulated method of distribution was the payment of funeral expenses, which was not an exception applicable on the facts. (f) Insurance policies Policy monies under life policy: not to form part of insured’s estate CLPA, s 73(1) A policy of assurance effected by any man on his own life and expressed, before the date of commencement of section 10 of the Insurance (Amendment) Act 2009, to be for the benefit of his wife or of his children or of his wife and children or any of them, or by any woman on her own life and expressed, before the date of commencement of section 10 of the Insurance (Amendment) Act 2009, to be for the benefit of her husband or of her children or of her husband and children or any of them, shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not, so long as any object of the trust remains unperformed, form part of the estate of the insured or be subject to his or her debts. If trust nomination: irrevocable without all trustees and beneficiaries’ Insurance Act, consent ss 49L Immediate trust created; policy monies do not form part of deceased’s Dolly Eng estate (1995) SGHC Held: An immediate trust was created in the beneficiary’s favour under the CLPA, s 73. The fund generated by the policy went to the beneficiary and did not form part of the deceased’s estate. Immaterial that s 73 was not mentioned in the policy, because it is not a requirement of s 73. Held: Lina Lim (2011) SGHC In Dolly Eng (1995) SGHC, the provision “Beneficiary. Mdm Eng Li Cheng, wife of the life assured” was sufficient expression. s 73 need not be expressly mentioned. A trust was immediately constituted in favour of the beneficiary. The proceeds do not form part of the estate. If r

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