What is a testamentary will?

A will is a legal document by a person declaring his intention on what should happen to his assets and personal matters after he passes on.

Proper drafting of a will is important. There are various legal rules and considerations pertaining to wills which should be noted. Once the testator has passed on, there is generally little that can be done to rectify errors or injustices arising out of a dead person’s will. Unclear and ambiguous wording in a will may potentially result in problems implementing the will or even its invalidity. It may also give rise to unnecessary litigation by the (potential) beneficiaries of the will.

Testamentary Capacity

A will may only be made by a person who is at least 21 years of age and has mental capacity to execute a will.

The essential requisites of testamentary capacity were recently restated in George Abraham Vadakathu v Jacob George [2009] 3 SLR(R) 631 (“George Abraham”) at [29] (also Banks v Goodfellow (1870) LR 5 QB 549) as follows:

(a) the testator understands the nature of the act and what its consequences are;
(b) he knows the extent of his property of which he is disposing;
(c) he knows who his beneficiaries are and can appreciate their claims to his property; and
(d) he is free from an abnormal state of mind (eg, delusions) that might distort feelings or judgments relevant to making the will. Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (CA) at [37].

An indication of testamentary capacity would be the rationality of the will having regard to its terms and the identities of the beneficiaries: Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (CA) at [40].

If a testator is shown to have suffered from an incapacitating mental illness prior to the execution of the will that resulted in a loss of testamentary capacity, then it may be presumed that the testator continued to lack testamentary capacity up till the time of the will’s execution. This proposition, however, does not fundamentally alter the propounder’s burden of showing that such illness had not affected the testator’s testamentary capacity at the time of the execution of the will. Instead, the inquiry will turn to whether a lack of testamentary capacity could be inferred from the existence of the mental illness and whether, despite the illness, the testator was lucid at the execution of the will, although the severity of the illness may influence the threshold of proof required: Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (CA) at [41].

However, the existence of a serious mental illness at the material time does not completely address the issue of testamentary capacity, a related but distinct question which includes the other requisites. It is ultimately for the court to decide whether the testator had testamentary capacity at the relevant time on the evidence before the court, including the opinions of medical experts and non-medical testimony on the behaviour of the testator before, during or after the execution of the will: Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (CA) at [42].

Whether a testator had the mental capacity to understand the nature of a will and its consequences was only one element of testamentary capacity and this element was not necessarily determined by the existence of some form of mental impairment. The testatrix’s illness of dementia clearly varied in severity and fluctuated over time. It might not have affected her mental faculties to the extent that she lacked testamentary capacity at an early stage of her illness. She could have had moments of lucidity during which she would have possessed testamentary capacity to execute a will: Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (CA) at [39].

Under ordinary circumstances the reading of a will to a testator not suffering any mental infirmity would be sufficient evidence of his understanding or knowledge of the contents, but that general principle would not apply to a situation where the testator might not have full understanding due to the onset of dementia: Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (CA) at [55] and [56].

If a testator was known to be suffering from any mental infirmity, a doctor should be called to certify her mental capacity before she was allowed to sign the will to ensure that such a testator fully understood the will. Furthermore, the solicitor should ask the appropriate questions to ascertain the testator’s capacity to understand the contents of the will. The testator should be asked as simple a question as whether he or she was making a will for the first time or whether he or she had made a will. In the latter case, the solicitor should ask whether the testator knew he was revoking the existing will: Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (CA) at [60].

Revocation Clause

When executing a new will, it is important to always revoke all former wills and testamentary dispositions. Otherwise, there is a risk that an old will may be valid and effective alongside a new will, resulting in problems subsequently.

Appointment of Executors and Trustees

An executor is the person who will obtain a grant of probate upon the testator’s death and carries out the testator’s wishes stated in the will. He would call in the testator’s assets, pay the testator’s creditors and distribute the remaining assets to the beneficiaries in accordance with the terms of the will.

Make sure you totally trust your executors as you will be entrusting them to carry out your wishes in the manner you want to be carried out. Ask your executors if they are willing to be your executors before appointing them as such in your will. If the executors are unwilling, and you appoint them as such anyway, this may cause problems for your beneficiaries subsequently.

Generally, executors who are laypersons are volunteers and not entitled to be remunerated unless you specify so in your will. On the other hand, a corporate trustee is entitled to reasonable remuneration.

At least one executor should be appointed; ideally, there should be at least two executors. More than one may be appointed but if there are too many, it may be practically troublesome for all the executors to do certain acts.

If no executor is appointed by the will, a court application will have to be taken out to obtain Letters of Administration, as in intestacy (i.e. where no will was made). This may prove problematic subsequently as the category of persons who may apply for administration is limited and the court may require an administration bond.

It is preferable to appoint the executor(s) as trustee(s) as well. The offices of executor and trustee are different. A trustee administers trusts arising from a will. Not every will creates trusts. An executor in Singapore has a statutory power of sale for administration purposes. However, those powers are lost once the executor’s duties have been completed, and the person to whom probate has been granted holds as trustee. The trustee typically has a more long-term role given that his role continues beyond the executorial duties are completed.

Executors have certain limited powers for sale and leasing, and trustees have limited power of leasing. Normally, a trustee can only do those things which he is specifically empowered to do under the instrument constituting the trust, or under some other instrument ancillary thereto. In Singapore, certain powers are conferred upon a trustee by the Trustees Act (Cap. 337). However, unless a will expressly gives the trustee the powers he might need, there may be situations where the trustee is powerless to do what should be done. In that event, the trustee would have to apply to the High Court for an order from the court giving him power to do a specific act.

If your assets include certain investments, it may be profitable for your beneficiaries that the investments are not liquidated immediately for distribution but instead, maintained or re-invested. Typically, more sophisticated wills would give trustees the power to retain those types of investments or to convert them into other investments, and to relieve the trustee of all liability for doing so.

Attestation

In Singapore, no special form of attestation is required by law, although in practice, words should be used to show that the Wills Act has been complied with.

The procedure of obtaining probate of a will is easier if it contains a proper attestation clause duly completed. In a probate application, an affidavit of the attesting witness or other evidence may be required where: –

• the attestation clause is incomplete;
• there is doubt as to the testator’s knowledge and approval of its contents;
• the will is undated;
• there are unattested interlineations, obliterations or alterations;
• different pens have been used by the deceased and / or the witnesses;
• where the witnesses sign in a language other than English; or
• where there are any other matters requiring explanation.

 

Execution and Alterations

Care must be taken to ensure:

• the will is signed at its end by the testator,
• in the presence of two witnesses, who,
• in the testator’s presence, and
• in the sight and presence of each other also signs as witnesses, and that
• it is signed in the presence of the drafting solicitor if possible, and that,
• it is checked by him after execution, especially if not executed in his presence.

No witness should be a beneficiary or the spouse of the beneficiary.  A gift under the will to such a witness, or a witness’ spouse will fail.  If a beneficiary subsequently becomes the spouse of a witness, the gift will not fail.

If there may be doubt about the mental capacity of a person executing the will, it is prudent to obtain some documentary evidence to confirm the mental capacity of the person, e.g. a medical certificate.

A codicil is a testamentary document altering an existing will or testamentary disposition. It is recommended that instead of a codicil, a former will is revoked and a new will is executed to replace the former will altogether.

Alterations made after the execution of the will necessitates the re-execution of the will. Alterations made prior to execution should be authenticated by:-

• being referred to specifically in the body of the will itself, or
• the signature or initials of the testator and witnesses being placed on the will, usually in the margin, adjacent to the alteration.

 

Revocation

A testator may subsequently revoke his will (while he is alive that is). The test for capacity to revoke is the same as the capacity to execute a will. The solicitor cannot revoke by destruction since this must be done in the presence and under the direction of the testator.

The solicitor should return the will to the client, and explain how it can be effectively revoked, and, perhaps, invite the client to call and discuss any intended change in testamentary disposition.

Marriage automatically revokes a will. However, a will made on or after 29 August 1938 which is expressly made in contemplation of a marriage will not be revoked by that marriage contemplated.

Gifts of Assets

You do not have to specifically list all your assets in the will. You only have to specify the ones you specifically want to give away to specific persons. All other assets can be distributed under the residuary estate.

Where gifts are made to charity, the name and details of the charitable organization should be clearly stated. For those charities not registered in Singapore, you will have to make sure that the charity is in fact a charity. It is important not to draft the charitable bequest such that it might be considered a public and charitable purpose or for some religious purpose. Charitable trusts are treated more favourably than ordinary trusts and, in some cases where an ordinary trust would fail, a charitable trust could be upheld. It is advisable to include in charitable bequests a release for the trustee, so that the trustee is not bound to see to the application of the bequest.

Assets which cannot be dealt with by a will

CPF monies

CPF monies do not form part of the estate of a person. In Chai Choon Yong v CPF Board [2004] 2 SLR 416, the High Court held that nominating a beneficiary of the CPF monies in a will is invalid in the absence of a nomination under the CPF Rules.

The CPF Rules prescribe a form of nomination which is like a will in terms of formal requirements and is revocable by marriage. A person must separately submit to CPF the nomination form to nominate a beneficiary to receive his CPF monies upon his death.

If at the time of the death of a member of the CPF, no person has been nominated by him, 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, if the member is not a Muslim at the time of his death; or
• section 112 of the Administration of Muslim Act if the member is a Muslim at the time of his death.

In a forum letter to the Straits Times (Chan Jee May, “Hassle to claim late grandma’s CPF money”, The Straits Times (30 November 2015)), the writer complained that her grandmother who died at 93 years old had a will but she could not get the CPF Board to distribute her grandmother’s CPF monies to her and her family members. She had to prove her relationship with her grandmother. As her grandparents did not have a marriage certificate, she was unable to prove her relationship in order to obtain the CPF monies under the intestacy regime from the Public Trustee’s Office.

In such a scenario, given that the claimant is unable to provide supporting documentation to prove her relationship with the deceased, e.g. birth and marriage certificates, she would have to be arrange for the deceased’s family members, e.g. siblings, to make a statutory declaration on the relationship. (See Praveen Randhawa and Irene Kang, “CPF monies not covered by a will: Forum” The Straits Times (9 December 2015).)

Insurance policy monies

Insurance policy monies devolve upon beneficiaries nominated in the insurance policy.

Jointly held property

All jointly held property (e.g. joint bank accounts, joint tenancies in real property, etc) may pass to a surviving joint owner automatically on the death of the other joint owners).

This is pursuant to the rule of survivorship.

However, the rule of survivorship is a rule of presumption only. In other words, if a property was held in joint tenancy, and there are no other relevant facts, then yes the entire property goes to the joint tenant / joint owner, regardless of the relationship between joint tenants. However, this presumptive rule can be displaced by a resulting trust or presumed resulting trust.

A resulting trust will arise where there has been a transfer of property in circumstances where the deceased did not intend to benefit the survivor. Someone challenging the rule of survivorship would have to prove a contrary intention.

The presumption of resulting trust arises where there has been a transfer of property to the survivor but the survivor had not provided the whole of the consideration (e.g. purchase price of the property) and there is no evidence before the court which reveals the true intention of the deceased transferor. The deceased’s lack of intention to benefit the survivor is inferred.

Where the presumption of resulting trust arises, the burden of proof shifts such that the deceased is presumed to have intended to retain the beneficial ownership of the property.

In some circumstances, the deceased may be regarded as having made a gift to the recipient, with no intention to retain an interest in the property concerned. This is the presumption of advancement. This presumption is only relevant where a presumed resulting trust has already been found on the facts, with the former operating to displace the latter.

There are certain types of relationships, such as the transfers of property from husband to wife and from father to child, which attract the presumption of advancement. However, the legal rules on this are archaic and based on categories and old societal norms, e.g. no presumption of advancement for transfer from wife to husband. So the Singapore courts have held that this has to then be considered on the facts of the case as to the nature and state of the parties’ relationship, or whether the presumption of advancement is rebutted.

See some of these legal principles set out in the case of Estate of Yang Chun (Mrs) née Sun Hui Min, deceased v Yang Chia-Yin [2019] SGHC 152 at [54]-[64].

It is possible for you to expressly state your intention in your will what your wishes are regarding assets which are owned or held jointly with another person.

Guardianship of Children

Under the Guardianship of Infants Act (Cap. 122), section 7 of the Act empowers the parent of an infant to appoint a person to be guardian of the infant after his or her death. A testator may therefore appoint a guardian in his or her will.

However, any such guardian so appointed shall act jointly with the surviving parent unless the surviving parent objects to so acting. If the guardian considers that the surviving parent is unfit to have custody of the infant. The guardian may then apply to the court to make an order that he shall be sole guardian and to grant access to the surviving parent. The court may also order that the surviving parent pay the guardian maintenance of the infant.

Assets Distributed to Children upon Reaching Certain Age

It is possible to provide in the will for a testator’s assets to be distributed to his or her children upon their reaching a specified age. The will may provide that the distribution is made in lump sum or in annuities until a certain age.

Funeral Arrangements

Different family members may have their own ideas about how the deceased person wants to hold his funeral, or what he or she wants to do with his or her body upon death. Acrimonious disputes can arise if the family argues over such arrangements.

It is important for a testator to state in his or her will detailed instructions as to his or her preferred funeral arrangements.

Pets and Animals

It is possible to make arrangements for pets and animals under a will. Animals are considered under the law to be personal property. As such, a will should provide for the pet to be given to a reliable person entrusted with taking care of the pet. Financial provisions may also be made for this person as a gift.

After Execution of Will

It is recommended that you do not hide your will. Make sure that the executors and trustees and the key family members know where the will is. Alternatively, you could arrange for a custodian to have custody of your will.

You may also deposit information regarding your will in the Wills Registry maintained by the Public Trustee. Information includes: details of the testator; date of the will; details of the person who drew up the will; details of where the will is held. This will allow the relevant persons to subsequently search for information regarding your will. The Registry is confidential and will keep information for 120 years from the date of birth of the testator. The Registry does not keep the actual will or a copy of the actual will. It is not mandatory to deposit will information with the Registry for the will to be effective. A small fee is payable for each deposit.

Only certain persons may make a search of information on a will:-

1. The person who made the will (if they give us proof of identity).
2. The solicitor who is helping someone draw up any further will.
3. The solicitor acting for the estate of someone who has died (if they produce the death certificate).
4. The next-of-kin of someone who has died if they produce the death certificate and documents showing their relationship to the person who has died.

Estate Duty Abolished

Estate duty has been abolished in Singapore with effect from 15 February 2008. However, estate duty is still payable on estates where the person died before 15 February 2008.

Formal Validity

Under section 5 of the Wills Act, a will shall be treated as properly executed if its execution conformed to the internal law in force —

(a) in the territory where it was executed;

(b) in the territory where the testator was domiciled at the time —

(i) when the will was executed; or

(ii) of his death;

(c) in the territory where the testator habitually resided at either of the times referred to in paragraph (b); or

(d) in the state of which the testator was a national at either of the times referred to in paragraph (b).

Nuncupative or Oral Wills

The High Court in Tan Pwee Eng v Tan Pwee Hua [2011] 1 SLR 113 has held that under the Wills Act, nuncupative or oral wills are no longer valid in the light of the writing requirement in section 6 of the Act. A very narrow exception is set out in section 27 of the Act, which provides that “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”.

Donatio Mortis Causa

A donatio mortis causa is a gift of property made by someone who anticipates dying in the immediate future, and takes effect only after the donor dies. In Koh Cheong Heng v Ho Yee Fong [2011] SGHC 48, the High Court set out at [13] 3 conditions for a valid donatio mortis causa:-

(1) the gift had to have been made in contemplation of impending death;

(2) the gift had to have been made upon the condition that it was to be absolute and complete only on the donor’s death, such a condition being express or implied from the fact that the gift was made when the donor was ill; and

(3) the donor must have intended to part with dominion over the subject matter, and there must be delivery of the said subject matter (or something representing it) which the donee accepted.

The court clarified that a donatio mortis causa was not a nuncupative will: [17]-[21]. It was instead a sui generis category of property dealing which was neither completely inter vivos nor completely testamentary. Therefore, the operation of donatio mortis causa was not precluded by the prohibition of nuncupative wills contained in section 6 of the Wills Act. Revocation of the donatio mortis causa might take place either expressly or automatically through the donor’s recovery from illness. The donor’s power of revocation in a situation where legal title had been vested in the donee was that a remedial constructive trust arose upon revocation.

If you need a Singapore lawyer to help you write a will or apply for grant of probate or letters of administration, feel free to contact me.