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

[PROBATE (\#PS) 9](#_Toc152100309) [A -- Wills Preparation, Execution and Interpretation 9](#a-wills-preparation-execution-and-interpretation) [1 -- Types of Wills 9](#types-of-wills) [(a) Nuncupative Wills 9](#a-nuncupative-wills) [(b) Mutual Wills 9](#b-mutual-wills) [(c) Joint Wills 10](#c-j...

[PROBATE (\#PS) 9](#_Toc152100309) [A -- Wills Preparation, Execution and Interpretation 9](#a-wills-preparation-execution-and-interpretation) [1 -- Types of Wills 9](#types-of-wills) [(a) Nuncupative Wills 9](#a-nuncupative-wills) [(b) Mutual Wills 9](#b-mutual-wills) [(c) Joint Wills 10](#c-joint-wills) [(d) Soldiers' Wills 10](#d-soldiers-wills) [2 -- Who can make a will? 10](#who-can-make-a-will) [(a) s 4 WA 10](#a-s-4-wa) [(b) AMLA's restrictions for Muslims 10](#b-amlas-restrictions-for-muslims) [3 -- Formalities 11](#formalities) [(a) Execution of the will 12](#a-execution-of-the-will) [(b) Witnesses 13](#b-witnesses) [(d) Duties and liabilities of solicitors 14](#d-duties-and-liabilities-of-solicitors) [4 -- Testamentary capacity 16](#testamentary-capacity) [(a) Establishing the testamentary capacity 16](#a-establishing-the-testamentary-capacity) [5 -- Executors' appointment 23](#executors-appointment) [6 -- Properties 25](#properties) [(a) Joint Tenancies of immovable property 25](#a-joint-tenancies-of-immovable-property) [(b) Properties held by deceased on constructive or resulting trusts 27](#b-properties-held-by-deceased-on-constructive-or-resulting-trusts) [(c) Considerations for certain types of immovable property 27](#c-considerations-for-certain-types-of-immovable-property) [(d) Joint bank accounts 29](#d-joint-bank-accounts) [(e) CPF Monies 31](#e-cpf-monies) [(f) Insurance policies 33](#f-insurance-policies) [(g) Revocable nominations 35](#g-revocable-nominations) [7 -- Construction of Wills 36](#construction-of-wills) [Construction of gifts under wills 39](#construction-of-gifts-under-wills) [Death of the beneficiaries; predeceasing the testator 41](#death-of-the-beneficiaries-predeceasing-the-testator) [Ademption / Abatement Insufficient assets 43](#ademption-abatement-insufficient-assets) [Donatio Mortis Causa -- whether precluded by the WA 43](#donatio-mortis-causa-whether-precluded-by-the-wa) [8 -- Taking instructions to prepare for a will 44](#taking-instructions-to-prepare-for-a-will) [9 -- Conflicts of interests, ethical issues and professional negligence 44](#conflicts-of-interests-ethical-issues-and-professional-negligence) [(a) Risks of conflict of interest 44](#a-risks-of-conflict-of-interest) [Gifts from clients 47](#gifts-from-clients) [Professional Negligence 48](#professional-negligence) [10 -- Post execution of the will 53](#post-execution-of-the-will) [B -- Intestacy 54](#b-intestacy) [1 -- Scope of Application of ISA 54](#scope-of-application-of-isa) [2 -- Illegitimate, adopted and foster children 57](#illegitimate-adopted-and-foster-children) [Illegitimate children 57](#illegitimate-children) [Adopted children 58](#adopted-children) [Stepchildren 59](#stepchildren) [Half Blood 59](#half-blood) [C -- Probate and Administration 59](#c-probate-and-administration) [Definitions 59](#definitions) [Practical steps to take when someone passes away 60](#practical-steps-to-take-when-someone-passes-away) [3 -- Obtaining a Grant of Representation 62](#obtaining-a-grant-of-representation) [(a) Main types of grant 62](#a-main-types-of-grant) [(b) Preliminary Considerations 65](#b-preliminary-considerations) [4 -- Non-Contentious Applications 66](#non-contentious-applications) [(a) Entitlement to Grant 66](#a-entitlement-to-grant) [(b) Clearing off prior rights -- when are renunciations and consent required? 68](#b-clearing-off-prior-rights-when-are-renunciations-and-consent-required) [(c) Procedural Steps 70](#c-procedural-steps) [5 -- Contentious Applications 92](#contentious-applications) [(a) Probate Actions 92](#a-probate-actions) [(b) Issues 92](#b-issues) [(c) Burden of proof 100](#c-burden-of-proof) [(d) Commencement of probate actions and procedure 102](#d-commencement-of-probate-actions-and-procedure) [Muslim Family Law (\#ML) 111](#_Toc152100367) [A -- Muslim Marriages 111](#a-muslim-marriages) [1 -- AMLA 111](#amla) [1.1 Muslim Law in Singapore 111](#muslim-law-in-singapore) [1.2 Application of AMLA 111](#application-of-amla) [2 -- Syariah Court 112](#syariah-court) [2.1 Jurisdiction 112](#jurisdiction-1) [2.2 Personal jurisdiction 113](#personal-jurisdiction) [2.3 Territorial jurisdiction 114](#territorial-jurisdiction) [2.4 Subject matter jurisdiction 115](#subject-matter-jurisdiction) [2.5 Residual Jurisdiction of Civil Courts 115](#residual-jurisdiction-of-civil-courts) [2.6 Concurrent Jurisdiction 115](#concurrent-jurisdiction) [2.7 Powers of SYC 118](#powers-of-syc) [3 Divorces and Ancillary orders 121](#divorces-and-ancillary-orders) [4 Muslim Inheritance 124](#muslim-inheritance) [Real Estate Practice (\#REP) 125](#_Toc152100382) [Introduction 125](#introduction) [**Registration of Deeds** 126](#registration-of-deeds-previous-system) [Torrens System 126](#torrens-system) [Transaction structures 126](#transaction-structures) [Financing an asset purchase 126](#financing-an-asset-purchase) [Transfer of real estate ownership 127](#transfer-of-real-estate-ownership) [1 -- Preliminary Matters 128](#preliminary-matters) [Parties 128](#parties) [First steps 128](#first-steps) [Taking instruction -- Attendance Notes 128](#taking-instruction-attendance-notes) [Capacity 130](#capacity-to-enter-transaction-hold-land) [1.2 Types of property 131](#types-of-property) [1.2.1 Residential Property 131](#residential-property) [Strata Title Property 133](#_Toc152100396) [Deceased Owners -- s 35(2) CLPA 133](#deceased-owners-s-352-clpa) [CPF Monies 133](#cpf-monies) [Stamp Duty 133](#stamp-duty) [GST 134](#gst) [1.3 Nature of the Transaction 135](#nature-of-the-transaction) [1.4 Master Plan 135](#master-plan) [1.5 Contracts 135](#contracts) [Conclusion 135](#conclusion) [2 -- Searches and Investigation of Title 136](#searches-and-investigation-of-title) [2.1 What is a title search? 136](#what-is-a-title-search) [Contents of a search 136](#contents-of-a-search) [Importance of searches -- transactions at an undervalue 137](#importance-of-searches-transactions-at-an-undervalue) [2.2 Solicitor's Undertaking 137](#solicitors-undertaking) [2.3 Good Root of Title 137](#good-root-of-title) [2.3.1 Deducing title 138](#deducing-title) [Common Law Titles 138](#common-law-titles) [Investigating Torrents Title -- Land Titles Act 138](#investigating-torrents-title-land-titles-act) [2.4 Legal Requisitions 138](#legal-requisitions) [3 -- Preparing and Concluding Contracts 139](#preparing-and-concluding-contracts) [3.1 Ways to Conclude a Contract 139](#ways-to-conclude-a-contract) [3.1.1 Option to Purchase 140](#option-to-purchase) [3.1.2 Sale & Purchase Agreement 140](#sale-purchase-agreement) [3.2 Major Terms to the Contract 140](#major-terms-to-the-contract) [3.3 Law Society's Conditions of Sale 2020 141](#law-societys-conditions-of-sale-2020) [3.4 Stamp Duty 141](#stamp-duty-1) [3.4.1 Buyer's Stamp Duty (BSD) Calculation 141](#buyers-stamp-duty-bsd-calculation) [3.4.2 Seller's Stamp Duty 141](#sellers-stamp-duty) [3.5 Withholding Tax 142](#withholding-tax) [3.6 GST 142](#gst-1) [3.7 Lodging a Caveat 143](#lodging-a-caveat) [4 -- Sale of a Private Residential Property with legal title issued 143](#sale-of-a-private-residential-property-with-legal-title-issued) [4.1 How to secure a purchaser? 145](#how-to-secure-a-purchaser) [4.2 Who prepares the contract of sale? 145](#who-prepares-the-contract-of-sale) [4.3 Types of Contracts 145](#types-of-contracts) [4.3.1 Option to Purchase 146](#option-to-purchase-1) [4.3.2 Sale and Purchase Agreement 146](#sale-and-purchase-agreement) [4.4 Terms of the Contract of Sale 147](#terms-of-the-contract-of-sale) [4.5 Non-merger clause 149](#non-merger-clause) [4.5.1 Unfavourable to Vendor 149](#unfavourable-to-vendor) [4.6 Position of Vendor after conclusion of the contract 149](#position-of-vendor-after-conclusion-of-the-contract) [4.7 Capacities and Number of solicitors 149](#capacities-and-number-of-solicitors) [4.8 Duties of the Vendor's Solicitors 149](#duties-of-the-vendors-solicitors) [4.9 Duties of the Bank's Solicitors 152](#duties-of-the-banks-solicitors) [4.10 Duties of CPF Board's Solicitors 152](#duties-of-cpf-boards-solicitors) [5 -- Mortgages and Withdrawal of CPF Monies 153](#mortgages-and-withdrawal-of-cpf-monies) [5.1 Financing a purchase of property 153](#financing-a-purchase-of-property) [5.2 Mortgage 153](#mortgage) [5.2.1 Parties to a mortgage 153](#parties-to-a-mortgage) [5.2.2 Types of Mortgages 153](#types-of-mortgages) [5.2.3 Security Documents 154](#security-documents) [5.2.4 Letter of Offer 154](#letter-of-offer) [5.2.5 Standard Terms & Conditions 154](#standard-terms-conditions) [5.2.6 Memorandum of Mortgage 154](#memorandum-of-mortgage) [5.3 Where Borrower is a Company 154](#where-borrower-is-a-company) [5.4 CPF Board's Statutory Charge 155](#cpf-boards-statutory-charge) [5.5 Process 155](#process) [6 -- Completion Accounts 155](#completion-accounts) [6.1 Types of Completion Accounts 155](#types-of-completion-accounts) [6.1.1 Vendor's Solicitor to Purchaser's Solicitor 155](#vendors-solicitor-to-purchasers-solicitor) [6.1.2 Vendor's Solicitors to Vendor 158](#vendors-solicitors-to-vendor-seller) [6.1.3 Purchaser's Solicitors to Purchasers 159](#purchasers-solicitors-to-purchasers) [6.2 Stakeholder Monies 160](#stakeholder-monies) [6.3 Cash Difference (for Vendor) 160](#cash-difference-for-vendor) [6.4 CPF Monies (for Vendor) 161](#cpf-monies-for-vendor) [7 -- Completion Process 161](#completion-process) [7.1 Who attends Legal Completion? 161](#who-attends-legal-completion) [7.2 Where to Complete? 161](#where-to-complete) [7.3 Preparations for Legal Completion 162](#preparations-for-legal-completion) [7.4 Follow Up after Legal Completion 163](#follow-up-after-legal-completion) [8 -- Singapore Land Authority 164](#singapore-land-authority) [8.1 SLA 164](#sla) [8.1.1 Land Survey Division 165](#land-survey-division) [8.1.2 Land Titles Registry 166](#land-titles-registry) [8.1.3 Land Dealings Approval Unit 166](#land-dealings-approval-unit) [8.2 Land Registration 166](#land-registration) [8.2.1 Common Law (Deeds) System 166](#common-law-deeds-system) [8.2.2 Conversion 166](#conversion) [8.2.3 Land Titles System 167](#land-titles-system) [8.2.4 Land Titles (Strata) Act 167](#land-titles-strata-act) [8.2.5 Share Value 167](#share-value) [8.2.6 Development Life Cycle 168](#development-life-cycle) [8.3 Land Dealings Approval Unit 168](#land-dealings-approval-unit-1) [8.3.1 Restricted Residential Property ("RRP") 168](#restricted-residential-property-rrp) [8.3.2 Non-restricted Residential Property 168](#non-restricted-residential-property) [8.3.3 Foreign Person 169](#foreign-person) [8.4 e-Registry 169](#e-registry) [8.4.1 Electronic Lodgment System 170](#electronic-lodgment-system) [8.4.2 Electronic Payment Instructions. 170](#electronic-payment-instructions.) [8.4.3 Going Paperless 171](#going-paperless) [9 -- Housing Developers -- Uncompleted Property 172](#housing-developers-uncompleted-property) [9.1 What is an 'uncompleted property'? 172](#what-is-an-uncompleted-property) [9.2 Legislation 172](#legislation) [9.3 Prescribed Forms 172](#prescribed-forms) [9.4 Timeline -- Grant of option 173](#timeline-grant-of-option) [9.5 Timeline -- Exercise of Option 173](#timeline-exercise-of-option) [9.5.1 Non-exercise of Option 173](#non-exercise-of-option) [9.6 Payment in Progressive Stages 174](#payment-in-progressive-stages) [9.7 Delivery of Vacant Possession 174](#delivery-of-vacant-possession) [9.8 Maintenance Charges 174](#maintenance-charges) [9.9 Defects Liability Period 175](#defects-liability-period) [9.10 Property Tax 175](#property-tax) [9.11 Issuance of Separate Title 175](#issuance-of-separate-title) [9.12 Principal Clauses in Agreement 175](#principal-clauses-in-agreement) [9.13 Financing a purchase 175](#financing-a-purchase) [PIPD (\#PI) 177](#_Toc152100501) [1 -- At the Scene of the Accident 177](#at-the-scene-of-the-accident) [1.1 Immediate steps 177](#immediate-steps) [1.2 GIA -- Motor Claims Framework 177](#gia-motor-claims-framework) [1.3 Reporting Procedures 178](#reporting-procedures) [1.4 At Lawyer's offiec 178](#at-lawyers-offiec) [1.5 Repudiation 178](#repudiation) [1.6 State Courts Practice Directions 178](#state-courts-practice-directions) [2 -- At the Courts 205](#at-the-courts) [2.1 Pre-Writ considerations 205](#pre-writ-considerations) [2.2 Matters in Court 206](#matters-in-court) [**Employment Law (\#EL)** 210](#_Toc152100512) [1 -- Overview of Key Legislations 210](#overview-of-key-legislations) [1.1 The Employment Act 210](#the-employment-act) [1.2 Key Statutes / Regulations 210](#key-statutes-regulations) [2 -- Classes and Categories of Employees 210](#classes-and-categories-of-employees) [2.1 Categories of 'employee' 211](#categories-of-employee) [2.2 Part IV of the EA 211](#part-iv-of-the-ea) [2.3 Foreign Employees 211](#foreign-employees) [3 -- Statutory Rights and Obligations of Employees and Employers 211](#statutory-rights-and-obligations-of-employees-and-employers) [3.1 Common Employment Obligations 211](#common-employment-obligations) [3.1.1 Types of Leave 212](#types-of-leave) [3.1.2 Termination and Retrenchment/Redundancy 212](#termination-and-retrenchmentredundancy) [3.1.3 Retirement and Re-employment 212](#retirement-and-re-employment) [3.2 Data Protection 212](#data-protection) [3.3 Workplace Health and Safety 213](#workplace-health-and-safety) [4 -- The Employment Contract: Express, Implied and Variation of Terms 213](#the-employment-contract-express-implied-and-variation-of-terms) [4.1 Express Terms 213](#express-terms) [4.2 Implied Terms 214](#implied-terms) [4.3 Variation of Terms 214](#variation-of-terms) [5 -- Industrial Relations 215](#industrial-relations) [5.1 The Tripartite Partners 215](#the-tripartite-partners) [5.1.1 Trade Unions 215](#trade-unions) [5.2 Collective Bargaining 215](#collective-bargaining) [6 -- Maintenance of Relationship -- Common Areas of Concerns 216](#maintenance-of-relationship-common-areas-of-concerns) [6.1 Harassment, Bullying & Discrimination at Work 216](#harassment-bullying-discrimination-at-work) [6.1.1 Workplace Harassment and Bullying. 216](#workplace-harassment-and-bullying.) [6.1.2 Anti-Discrimination in the Workplace 216](#anti-discrimination-in-the-workplace) [6.2 Upcoming Legislation on Workplace Fairness 217](#upcoming-legislation-on-workplace-fairness) [6.2.1 Overview of Tripartite Committee's Recommendations 217](#overview-of-tripartite-committees-recommendations) [**6.3 Performance Management and Misconduct** 217](#performance-management-and-misconduct) [6.3.1 Misconduct 218](#misconduct) [6.3.2 Due Inquiry 218](#due-inquiry) [7 -- Cessation of Relationship 219](#cessation-of-relationship) [7.1 Termination of Employment -- Grounds 219](#termination-of-employment-grounds) [7.2 Summary Dismissal 220](#summary-dismissal) [7.2.1 Common Law 220](#common-law-1) [7.2.2 Other summary termination scenarios 220](#other-summary-termination-scenarios) [7.3 Retrenchment / Redundancy 220](#retrenchment-redundancy) [7.4 Protected Classes of Employees 221](#protected-classes-of-employees) [7.5 Wrongful Termination & Remedies 222](#wrongful-termination-remedies) [7.5.1 Constructive Dismissal 222](#constructive-dismissal) [7.5.2 Claims under the Employment Claims Act 222](#claims-under-the-employment-claims-act) [7.5.3 Claims in the Singapore Court 223](#claims-in-the-singapore-court) []{#_Toc152100309.anchor}PROBATE (\#PS) A -- Wills 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 --- - in the territory **where it was executed**; (s 5(2)(a)) - 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)) - in the territory **where the testator habitually resided** at either of the times referred to in paragraph (b); or (s 5(2)(c)) - 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: - **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)) - **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)) - 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)) - 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: - 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)) - **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 --- - that the signature shall not follow or be immediately after the foot or end of the will; (s 6(3)(a)) - that a blank space shall intervene between the concluding word of the will and the signature; (s 6(3)(b)) - 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)) - 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)) - 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 | WA, s 6(2) | | simultaneous presence of at least | | | [2 witnesses]** | | | | | | **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 | *Cheo Yeoh* (2015) SGCA | | helped testator draft new will, | | | but it was witnessed by only 1 | | | person (the solicitor). | | | | | | Held: Will invalid. \[3\] | | +-----------------------------------+-----------------------------------+ | **Witness cannot be beneficiary | WA, s 10 | | or beneficiary's spouse, or gift | | | will be void** (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 | WA, s 11 | | creditor's spouse** | | | | | | - 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 | WA, s 9 | | witness's incompetency** | | | | | | - 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 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. \[38\] - 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. \[72\] - 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. \[73\] - 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. \[74\] #### 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 | FJR, r 211 | | due execution of will, he must | | | require 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 --- | | | | | | - from **one or more of the | | | attesting witnesses**; or | | | (r 211(1)(a)) | | | | | | - 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 --- | | | | | | - must, if he is satisfied | | | that the will was **not | | | duly executed, refuse | | | probate and order | | | accordingly**; or (r | | | 211(3)(a)) | | | | | | - 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 | FJR, r 215 | | himself as to** (1) **execution | | | of will by 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* (2009) SGHC | | | per Chan CJ | | - The legal requisites of | | | testamentary capacity in | | | *Banks v Goodfellow* (1870) | | | EWCA were: | | | | | | - **Nature.** The testator | | | understands the nature of | | | the acts and its | | | consequences \[29a\] | | | | | | - **Extent of his | | | property.** The testator | | | knows the extent of his | | | property which he is | | | disposing of \[29b\] | | | | | | - **Beneficiaries' | | | Identity.** The testator | | | knows who his | | | beneficiaries are and can | | | appreciate their claims | | | to his property \[29c\] | | | | | | - **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: | | | | | | - **Insane = Presumption.** | | | Where the testator is | | | subject to an insane | | | delusion, there is a | | | **presumption against** | | | testamentary capacity | | | \[32a\] | | | | | | - 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) \[32b\] | | | | | | - It may be equally | | | difficult to tell how far | | | the delusion influenced | | | the testator in the | | | particular disposal of | | | his property \[32c\] | | | | | | - **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 \[32d\] | | | | | | - If the delusion did not | | | affect the general | | | faculties of the mind, | | | and had no effect on the | | | will, the will is good | | | \[32e\] | | | | | | - **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 \[32f\] | | | | | | - If the testator suffered | | | serious mental illness | | | before executing his | | | will, a presumption | | | arises that it continued, | | | and the testator lacked | | | testamentary capacity. | | | | | | - **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. \[38\] The | | | serious mental illness | | | must be sufficient to | | | cause testamentary | | | incapacity. The more | | | serious the illness, the | | | higher the threshold of | | | proof. \[39\] | | | | | | - Burden of proof: | | | | | | - The burden of proving | | | testamentary capacity | | | lies on the party | | | propounding the will. | | | \[37\] | | | | | | - Expert evidence: | | | | | | - Where the expert | | | witnesses disagreed, the | | | court could place greater | | | weight on factual | | | witnesses. \[65\] | | | | | | - The court had to decide | | | the issues, not let the | | | experts decide. \[66\] | | | | | | - Application to the facts: | | | | | | - 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. | | | \[70\] | | +===================================+===================================+ | Held: | *Muriel Chee* (2010) SGCA | | | | | - For a will to be valid, the | | | testator must: | | | | | | - 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 \[37d\] | | | | | | - **Knowledge.** Have | | | knowledge and approval of | | | the contents of the will | | | \[37b\] | | | | | | - **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. | | | | | | - **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). \[40\] | | | | | | - **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. | | | \[40\] | | | | | | - 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. \[41\] | | | | | | - **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. | | | \[45\] | | | | | | | | | | | | - Knowledge and approval of | | | will's contents: | | | presumptions: | | | | | | - **Presumption Capacity = | | | Knowledge.** Once | | | testamentary capacity is | | | established, a rebuttable | | | presumption arises that | | | the testator knew and | | | approved of the contents | | | when executing the will. | | | \[46\] | | | | | | - **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. | | | \[46\] There is no | | | magical formula, fixed | | | criteria. \[47\] 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. \[48\] | | | | | | - **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. \[48\] | | | 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. | | | \[48\] | | | | | | - **If there exists a | | | presumption, consider any | | | other evidence to rebut | | | the presumption.** | | | | | | - The court should not be | | | concerned with the will's | | | fairness or equity *per | | | se* if it represented the | | | testator's intentions. | | | \[49\] | | | | | | - Burden of proof: | | | | | | - The propounder of the | | | will bears the burden of | | | proving that the testator | | | possessed testamentary | | | capacity \[40\] and | | | knowledge and approval of | | | the will's contents. | | | \[46\] | | | | | | - Expert evidence: | | | | | | - This inquiry remains a | | | judicial function. | | | Medical evidence is often | | | necessary but | | | conflicting. \[42\] | | | | | | - Application to the facts: | | | | | | - Testamentary capacity: | | | | | | - The propounder did | | | not discharge her | | | burden, as her | | | medical evidence was | | | weak and her | | | non-medical evidence | | | was rejected. \[52\] | | | | | | - Knowledge and approval of | | | will's contents: | | | | | | - **Onset of dementia, | | | failure to fully | | | understand.** The | | | propounder did not | | | discharge her burden. | | | \[54\] 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. \[56\] | | | | | | - 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). | | | \[58\] It read more | | | like an exercise in | | | justifying a | | | settlement of past | | | unequal treatment or | | | an equalisation of | | | inheritance. \[59\] | | +-----------------------------------+-----------------------------------+ | 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. \[70\] | | | | | | - 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). \[72\] | | +-----------------------------------+-----------------------------------+ | 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 |