Introduction

Having a will is important towards family legacy planning. While this is true, many individuals, particularly those who have opted with DIY wills without any guidance or advice from a legal professional, end up leaving a trail of unintended outcomes that deviate from their original intentions. This month’s Family Legacy Planning newsletter will explore 7 instances when the outcome of a will deviates from the original intent of the testator (Note that this list is a non-exhaustive list).

• Where a Will had not been Prepared in the Correct Manner

Drafting an executable and enforceable will goes beyond simply committing a testator’s intention of distribution of his/her assets to words. In Singapore, barring certain extraordinary circumstances, a will is deemed to be invalid if the following formalities are not followed:

• The will must be in writing;
• The testator must sign at the foot of the will;
• The testator needs to be 21 years old and above; and
• The will needs to be witnessed by 2 witnesses.

There could be instances where the testator had assumed that a verbal dictation of his/her intent of distribution was sufficient; or other instances where the Testator/Testatrix’s written will had been signed but not witnessed by any others. In such instances, the respective wills are not considered to be valid and the distribution of the testator’s assets would be subjected to the Intestate Succession Act (“ISA”) instead of the testator’s original intent.

• Where a Beneficiary is Also a Witness

Section 10 of the Wills Act states that where a witness is also the beneficiary in a will, that witness’s share of benefits from the will shall be treated as null and void. Whilst thankfully, in such situations, it has been held that the will is nevertheless still valid and enforceable, the testator’s intent to will the gifts/benefits to that particular beneficiary, however, fails and would certainly cause unexpected distress and unhappiness to that beneficiary.

• Interests in Real Estate held under a Joint Tenancy and Bank Accounts held in Joint Names

Real estate held under a joint tenancy is subjected to the principle of the right of survivorship – where all the rights, benefits and ownership of the real estate goes to the survivor(s) of all the co-owners. This right of survivorship takes precedence over the ability to will one’s interests and ownership in a property if there are other surviving co-owners of the said property. Hence any attempts to will one’s ownership in a property that is held under a joint tenancy with others will be deemed ineffective unless the individual is the last surviving member of the property before his/her demise. This could potentially lead to huge disputes between the intended beneficiaries and the surviving joint co-owners as real estate properties are usually of substantial value.

For most Joint Accounts which are operated on an “and/or” basis, the default position is that the right of survivorship will apply (as it is usually provided for in the contract between the bank account holders and the bank). However, there may at times, be surrounding circumstances or evidence which may suggest that the bank account holders may not have intended for such right of survivorship to apply and an aggrieved beneficiary may challenge such right of survivorship. A poorly drafted will by a testator who is ill-informed about the factors surrounding the distribution of assets from Joint Name Accounts could end up unintentionally willing all the benefits and assets in the Joint Account to the wrong party.

•  Where the Will covers Monies in the Testator’s/Testatrix’s CPF Account

Under the impression that monies in one’s CPF are considered his/her property/asset, many will assume that such assets can be covered in one’s will. While indeed an individual can decide who may receive such assets in the CPF upon his/her demise, it is important to note that for policy reasons, assets under one’s CPF account cannot be covered by a will. Any attempt to will the monies in one’s CPF account will be considered null and void and distribution of such monies will then be subjected to the ISA which could substantially differ from the individual’s original intent. The proper way to decide and instruct on the distribution of CPF monies upon one’s demise is by nominating a nominee via the CPF Board’s prescribed manner.

• When the Testator/Testatrix Marries After the Will had been Signed

Section 13 of the Wills Act states that any will made before a man or woman’s marriage will be revoked upon his/her marriage. Many individuals who do not receive any formal legal advice in their family legacy planning process are unaware that marriage automatically revokes any prior wills made, resulting in instances where their intended beneficiaries do not receive the originally intended gifts and the individual’s estate then becomes subjected to the ISA and its respective methods of distribution which could be substantially different from what the individual original intent.

• When a Gift in the Will had been Disposed Prior to the Testator/Testatrix’s Demise (Ademption)

Ademption occurs when there is a disposal of a particular gift in a will prior to the time of demise of the testator, leaving the original beneficiary without the disposed gift. In many instances, the testator may erroneously assume that the proceeds to the sale (prior to the demise of the testator) of a particular gift to a beneficiary would automatically be gifted to the same beneficiary. However, this is not the case. The law would only recognise that the gift is adeemed and that there is no more gift for the beneficiary. The sale proceeds would be treated as a separate asset to be accounted for. A testator who had received proper legal advice would thus have known to draft a more clearly worded Will to provide for the sale proceeds to go towards the beneficiary.

• When the Testator/Testatrix Wills a Gift of Money but There are Insufficient Funds to Provide for It (Abatement)

Abatement applies where a testator’s estate is solvent but is unable to satisfy all the legacies in full (after payment of taxes and other expenses) resulting in an overall reduction of the gifts to the respective beneficiaries. Indeed, testators/testatrices who are simply unaware and inattentive to their schedule of assets may end up having legacies that cannot be fully satisfied which will result in extensive efforts for the reapportionment of the existing assets in order to give effect to the will which may result in practical difficulties and ultimately, potential disputes.

Concluding thoughts

The instances mentioned in this article stem from a lack of understanding of the nuances and intricacies of estate law in Singapore and could have been avoided if the testators had received proper legal advice on the holding and distribution of certain assets and assistance with the drafting and preparation of the will.

Many treat the leaving of our legacy as our parting gift to those whom we care for and love the most and it would be a shame that such a legacy should result in complications and unhappiness due to a poorly drafted will. Indeed, seeking a competent professional to assist with the preparation of your will would be the wisest decision that one can make when it comes to good family legacy planning.

How SMTP can help you

At SMTP, we are able tap into our wealth of experience and resources in family legacy planning to provide assistance, guidance and administrative services to our clients. This would include advising on the structuring of your will, the legal implications of distributing certain assets, the relevant estate law that would apply, et cetera.

We also believe in close engagement with our clients, paying 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 on their fine details. Our team of dedicated staff are 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