Most of us know that a will is an instrument that tells the loved ones of a deceased exactly how the deceased’s assets are to be distributed. But what happens when there is no will – or worse still – if the will is not legally valid?
Dying with a Will
If you die leaving a legally valid will, the law will generally seek to enforce your distribution wishes as stated in your will. If your will is not legally valid, then your loved ones might have a problem.
There are certain formalities that must be met before a will is deemed to be legally valid, requirements of which are found in the Wills Act.
Most wills would set out the Executor that the deceased had chosen to administer the deceased’s estate. As such, this Executor is under a duty to apply to court for a Grant of Probate, after which he can proceed to distribute the deceased’s estate.
Dying without a Will
In Singapore, dying intestate (i.e. dying without a will) is governed by the Intestate Succession Act.
Section 7 of this Act essentially sets out the hierarchy of people who are entitled to your assets upon your death. For example, the first rule of distribution is that if you die leaving a surviving spouse, no issue (i.e. children and/or descendants of deceased children) and no parent, then your surviving spouse is entitled to the whole of your estate. See here for the full list of rules (insert link).
Generally, the next-of-kin of a deceased would apply to the court for a Grant of Letters of Administration, which effectively appoints that person as an Administrator, who is placed in charge of distributing the deceased’s estate.
Legal Requirements
The person making the will, known as the testator, must be at least 21 years of age, unless they are a soldier in actual military service, a mariner or a seaman at sea. For obvious reasons, the testator must also be of sound mind at the time of making of the will.
As for the will itself, the Wills Act requires the testator to sign at the foot of the will in the presence of two or more witnesses who are both present at the time of the signing. These witnesses, however, should not be beneficiaries to the will, as the Wills Act provides that any gift to witnesses shall be null and void.
Apart from including your assets in a will, you can also state how you want your liabilities, such as your debts, to be dealt with before your assets are distributed to your beneficiaries.
There is also a need to be clear about your beneficiaries, especially how much each one is to receive. You also need to appoint executors (to carry out your will), and your beneficiary can also fulfil this role.
While there is no specific form to be adhered to, over the years certain clauses have become essential when drafting a will. For example, it is necessary to include a revocation clause to revoke any and all previous wills. Next, there may be a need to provide for a situation when a beneficiary may die before you, and assets bequeathed to a deceased beneficiary will become part of the remainder of the estate which is dealt with by a residuary clause. There are also other clauses that concern the appointment of executors and trustees, specific and general gifts and, powers of trustees and attestation.
Common Problems with Wills
1. Assets
There have been cases where the deceased inadvertently, or on poor advice, includes in their will assets that cannot be distributed through a will. One example are jointly owned assets like monies in joint bank accounts and houses which are jointly owned.
Under the law, upon the demise of one joint owner, that property goes to the other owner by default. Note that for property held as tenants-in-common, the deceased may will away their portion of that property. Another example is monies in a CPF account. If the relevant CPF nomination form is not duly completed, the CPF money will be distributed accordingly under the Intestate Succession Act i.e. as though the deceased passed away without a will.
2. Marriage
Many people do not realise that unless the will specifically states otherwise, a will is deemed to be null and void upon the marriage of a testator.
3. Improper Execution
As mentioned previously, there are certain formalities to be adhered to when executing a will. A failure to validly execute a will may cause your will to be disregarded, resulting in a distribution of your estate under the Intestate Succession Act.
4. Drafting Language
Another issue concerns the way the will is worded. What may seem like an ordinary sentence may be susceptible to scrutiny when the will is challenged in court.
For example – “I bequeath SGD50,000.00 to the children of Lim Ah Tong of NRIC S1234567A and Lim Ah Long of NRIC S7654321Z.” In this case, the testator may have intended for the money to be split into equal shares between the children of Lim Ah Tong and the children of Lim Ah Long. However, there are many ways this clause in the will may be challenged.
The first argument that may be raised is that, due to the way the clause is worded, the money is to be split between Lim Ah Long and the children of Lim Ah Tong i.e. if Lim Ah Tong had three children, then the money will be split into four shares, the first share to be given to Lim Ah Long, and the other three shares to be given to the three children of Lim Ah Tong. Naturally, the second argument arises – in what percentages is the SGD50,000.00 to be split? In equal shares?
That brings us to the inevitable question – if a will drafted by a layman can be legally recognised as valid and effective, is it necessary to hire a lawyer to draft the will? As you would have seen from the above, the nitty-gritty of drafting a valid will requires time, patience and the requisite knowledge of the law. While you technically do not need to have your will drafted by a lawyer, it is highly recommended that you do so to better protect your interests in ensuring your estate, upon your demise, is distributed exactly how you want it to be done.