In the 1st instalment of this 2-part series, we introduced the concept of Will Validity, emphasizing that only a Valid Will is legally enforceable. We explored how validity of a Will consists of two key components: Formal Validity and Essential Validity. Part 1 of this series focused on exploring Formal Validity, which pertains to the proper execution of a Will according to Singaporean law.
This month, we shift our attention to Essential Validity, which addresses the testator’s testamentary capacity, free from undue influence, and with a clear understanding and awareness of the consequences of their decisions in the Will.
*Unless otherwise stated, it should also be noted that all statements in this article are made with the presumption that the Will is already formally valid.

Proving Essential Validity
[37] of the seminal case of [2010] 4 SLR 0373 established 3 clear requirements for a Will to be essentially valid, stating that “…a testator must:
1. Have the mental capacity to make a Will (i.e. testamentary capacity);
2. Have knowledge and approval of the contents of the Will; and
3. Be free from undue influence or the effects of fraud.
We shall briefly explore each of these requirements in order to have a clearer understanding on Essential Validity.
1. Having Testamentary Capacity
The leading authority on testamentary capacity is the landmark case of Banks v Goodfellow (1870) LR 5 QB 549 (“Banks”). This case has been consistently followed by our local courts, including in [2010] 4 SLR 0373 and [2009] 3 SLR(R) 631. The latter case, at paragraph [29], restates the essential requirements for establishing testamentary capacity at the time the Will is executed, as follows:

• The testator understands the nature of the act and what its consequences are;
• He knows the extent of his property of which he is disposing;
• He knows who his beneficiaries are and can appreciate their claims to his property; and
• He is free from an abnormal state of mind (eg, delusions) that might distort feelings or judgments relevant to making the Will.

[2010]4 SLR 0373 also stated that in applying the test in Banks, the Court must look at the totality of the evidence as a whole, comprising of both factual (including evidence of friends and relatives who had the opportunity to observe the testator) and medical components.

Accordingly, in the event when it is not known that the testator was suffering from any kind of mental disability, it is presumed that he/ she would have the requisite testamentary capacity (barring any irrational/ irregular distribution of assets in the Will) and it will be the challenger of the Will who would have to adduce evidence that the testator was suffering from a mental illness that was serious enough for the court to find that the testator lacked testamentary capacity.

On the other hand, in the event if the 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 and then it will be for the propounder to show that “…despite the illness, the testator was lucid at the execution of the Will” as stated in [39] of [2010]4 SLR 0373.

2. Awareness and Approval of the Contents of the Will
If the first requirement has been met then, the presumption is that the testator would have also known and approved of the contents of the Will at the time of execution ([46] in [2010]4 SLR 0373). It will then be for the challenger of the will to rebut such presumption. Such presumption, however “…will not exist where there were circumstances surrounding the execution of the Will which would raise a well-grounded suspicion that the Will (or some provision in it) did not express the mind of the testator ([46] in [2010]4 SLR 0373). This could include situations where the instructions to the drafter of the Will had been given by a beneficiary or where the Will was prepared by a person who becomes a substantial beneficiary of the estate.
In [48] of [2010]4 SLR 0373, the Court had also stated that “…in such suspicious circumstances where no presumption arises, the propounder of the Will must produce affirmative evidence of the testator’s knowledge and approval. The Court will typically look for evidence that the testamentary instrument was read over by, or to, the testator, or evidence that the testator gave instructions for the drafting of the Will and that the Will was drafted in accordance with those instructions (and at times),… the Court may require further evidence if the circumstances so require.” Thus, it is recommended that the testator should leave as much evidence such as a doctor’s evaluation letter of mental capacity, provide instructions directly to the individual preparing the Will, et cetera that would show that he/ she was aware of the contents of the Will and had approved it with his/ her signature.

3. Free of Fraud and Undue Influence
In this context, fraud refers to the traditional understanding of fraud in common law. Undue influence, in this case, occurs when the testator is pressured into creating a Will that does not reflect his/ her true intentions. The Court in [2021] 4 SLR 314 at [221]-[222] further elaborated that such pressure or coercion must be so overpowering that it suppresses the testator’s own choice without actually convincing them of the Will’s provisions.

Our Concluding Thoughts
The significance of Formal and Essential Validity in Will drafting cannot be overstated. As we’ve explored in this two-part series, a properly executed Will not only reflects the testator’s intentions but also ensures that those intentions are legally enforceable. The nuances involved in meeting statutory requirements and understanding the implications of various clauses underscore the intricate nature of estate planning.

How Can STMP Help You
The role of lawyers in the Will-drafting and execution process is paramount as we provide essential expertise in navigating the complex legal landscape, ensuring that Wills adhere to necessary formalities while also capturing the unique wishes of the testator, hence preventing potential disputes among beneficiaries, which can arise from ambiguities or oversights in Will drafting. Tapping on decades of experience and our very own Wealth & Legacy Screening process (involving a detailed, step-by-step, fact-finding process to determine a client’s circumstances and needs), our lawyers will be able to assist you on the drafting of your Will in a very systematic and structured manner, ensuring certainty and clarity in the management and distribution of your estate.

We also believe in close engagement with our clients, paying close attention to their individual facts and circumstances, and tailoring our advice and courses of action to cater to their specific needs and requirements. SMTP’s core philosophy is to provide bespoke legal advice based on our private clients’ specific needs and requirements, as cases always differ in their fine details. Our team of dedicated staff is ever eager and prepared to assist interested parties. Should you or your clients require any assistance in trust or real estate matters, please feel free to contact our Business Development Team to schedule a consultation. We look forward to working with you.

*This newsletter shall not be construed and be relied upon as legal advice and all readers are advised to seek separate legal advice for all matters related to or arising from the issues raised in this newsletter.