Introduction

The application for Grant of Probate is a necessary and important process that is required for the Executor of the will to obtain the legal authority from the Court to handle, distribute and manage the assets and liabilities of the Deceased. Of course, for cases where the estate is relatively simple and small with cooperative executors and beneficiaries, the probate process could be relatively straightforward and can be completed in a timely manner. However, as per all processes involving multiple parties and documents, there could be factors that would impact the timeline and have financial implications on the process. In this article, we shall briefly look at some of the more common causes for delay and increased in costs of the probate process and explore potential ways of minimizing their occurrence and/or impact on the probate process.

• An Unwilling on Uncooperative Executor

The role of the Executor is central to the probate process as he/she is the personal representative of the Deceased regarding the lawful distribution of the Deceased’s assets in according to the Deceased’s will. This would entail accounting for all the assets and beneficiaries, settling all outstanding liabilities and ensuring the will is being executed in a manner that follows the testator’s intention.

Evidently, this role demands a great deal of responsibilities, work and commitment from the individual and hence, the appointed Executor may not always be keen to take on such a role. Delays would likely occur when an uncooperative Executor chooses to delay the signing of key court documents such as the Administrative Oath and Supporting Affidavit. Furthermore, an uninterested Executor could simply decide to be inactive and not take any action regarding the application process, causing substantial delays.

When an appointed executor is unwilling to take on the role, it would be advisable to have him/her renounce his/her appointment to avoid further delays caused by his/her unwillingness to act, such that the back-up Executor or another court appointed administrator can manage the estate in his/her place. That said, prevention is better than cure. At the get-go, one should give considerable thought in appointing a willing and responsible individual as the executor. Thereafter, one should then have a discussion with the chosen individual about what the executor role entails and find out if the individual is comfortable in taking on this role. This will significantly reduce the chances of having an unwilling/uncooperative/incapable executor to manage your estate. In the unlikely scenario that a suitable candidate cannot be found, a testator can consider reaching out to professional executors who can perform this role for a fee.

• Missing Will

The will is a key document in the application for the Grant of Probate. It provides the directions of how the assets are to be managed and distributed. Without the will, there will be no direction or evidence as to the testator’s intention regarding the management of his/her estate and in most cases, where the will cannot be found, the whole application for a Grant of Probate could potentially be dismissed and the applicants directed instead to apply for Letters of Administration and the estate could then be subjected to Singapore’s Intestate Succession Act (“ISA”).

While indeed, the Probate and Administration Act 1934 does provide that where the original will is lost, a copy of the will can be submitted to the court and the court may grant a limited probate order in the interim, however, this process does come with its own set of challenges. For example, the alleged Executor would need to gather a considerable amount of evidence to show that such copy of the Will is indeed identical to the original lost/misplaced Will and that such missing will had not in fact, been destroyed or revoked. This process would add further delays and greater court and legal fees, assuming if the court even finds such evidence sufficient to grant any probate at all.

On that note, it is therefore always advisable to keep the will in a safe and secured place such as a private security deposit box at the testator’s own place of residence to avoid it being lost, forgotten or misplaced. To prevent a situation where no one knows about the whereabouts of the will, the testator should at least inform the executors and beneficiaries about the existence of the will and how to obtain it in the event of the death of the testator. One could also consider registering the will with the Singapore Will Registry which keeps a record on the location of the Will as per the last update of the testator. By taking the above steps, one can reduce the chances of parties being unaware of the whereabouts of the will, and the delays and costs that may follow as a result.

 Disputes Among Beneficiaries (where the Will is contested)

Disputes among beneficiaries of an estate can result in lengthy delays and substantial increase in costs to the probate process. Disputes can arise for many reasons which include but are not limited to the following:

• The validity of the entire will. This could include matters such as whether the required formalities to the formation of the will had been followed (e.g. whether there had been 2 independent witnesses to the testator’s signing of the will) or whether the testator had the required testamentary capacity whilst creating the Will or whether the testator had signed the will as a result of fraudulent circumstances.
• The interpretation of the will. This happens when beneficiaries disagree about the way in which the will had been drafted. Issues that could lead to disputes would include instances where differing interpretation would affect (i) the respective shares (to the testator’s estate) of the beneficiaries; (ii) whom to be included/excluded as beneficiaries (especially where the Testator had a huge, complex family structure); (iii) how certain assets are to be distributed or treated; (iv) the powers of the Executor/Trustee, et cetera.
• Disagreements regarding the executor. This could happen when beneficiaries are unsatisfied with the performance of the executor, questioning the executor’s competency, integrity and/or decision-making abilities.

Disputes would inevitably lead to delays and where such disputes become more serious, could lead to legal action which would lead to increase in costs. To reduce the risks of such disputes from occurring, one should engage a seasoned estate lawyer to assist on the preparation of the will to ensure that the will is clearly drafted and that the relevant rules of formality and mode of execution under S5 and S6 of the Wills Act are followed closely.

 No Clear and Consolidated List of Testator’s Assets

One of the executor’s responsibilities is to ensure that the testator’s assets are all accounted for and distributed in accordance to the will.  This could be an arduous and laborious task if the testator had drafted a will containing general distribution clauses (with no details of the assets) and had not left a consolidated inventory list of assets for the executor’s reference; almost akin to tasking the executor to search for treasure without providing a treasure map.  Without knowledge of what the testator’s assets are or where they can be found, the executor would then have to commence the gruelling process of tracing the testator’s assets which would involve a detailed investigation  on the deceased’s financial records and also reaching out to every financial institution, bank and relevant government authority in order to ascertain where and what kind of assets are available for distribution. This process could cause months of delays depending on how meticulous the executor is.

A testator should always keep an updated, consolidated asset list beside his/her will such that when the relevant time comes, the executor will then have a clear idea of what are the assets to be distributed and where to locate such assets. This would save the executor a substantial amount of time from searching for the assets and result in a much efficient and effective probate process.

When the Deceased is a foreigner with a foreign Will

 In accordance to Para 65(1) & (2) Family Justice Courts Practice Directions, when the Deceased is a foreigner with a foreign will, the Court will also require the submission of an affidavit of foreign law stating “(a)who is entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled or who is entitled to administer the estate by the law of the place where the deceased died domiciled; and (be) whether the will was properly executed where the deceased died domiciled.”  Obtaining such an affidavit will require seeking the assistance of a foreign qualified estate lawyer (alongside the local lawyers), hence leading to additional legal fees and time required to prepare such a document.

At the same time, verifying the authenticity and validity of foreign documents which include the will, death certificates, identity records and other supporting legal documents will require a consolidated effort among multiple parties which could include the foreign lawyers, institutions and government authorities. Even where parties have shown to be cooperative, there will be inevitable delays which could be due to communication breakdown or differing practices of the respective parties.

Additional time and cost are inevitable when applying for a grant of probate for a foreign testator with a foreign will. It is thus important for the executor of the estate to seek the guidance and advice of a local estate lawyer who has experience working on the applications of grant of probate regarding foreign wills. An experienced estate lawyer would have a clear understanding of the procedure and requirements of the local court and hence would be able to give clear instructions on what are and how to present the relevant documents that would reduce

An experienced estate lawyer would also know how to identify a situation if a foreign grant of probate had already been obtained and if resealing of such a foreign grant in Singapore would be possible (where the foreign grant of probate was that of a Commonwealth Jurisdiction) provided in sS47(1) Probate and Administration Act 1934. The resealing process gives legal recognition to the foreign grant and would be simpler than starting a fresh grant application and hence, result in lesser delays and fees.

Concluding Thoughts

The process of obtaining the Grant of Probate can be simple and straightforward in some cases, however, as we have covered in this article, there could be many factors that could add complexity to this process, resulting in additional delays and costs.

By recognising the potential obstacles that may arise, individuals can take proactive steps to reduce the effect of such obstacles or completely avoid them even before they occur. This includes engaging experience estate lawyers to assist and advise, maintaining comprehensive records of assets, engaging in thoughtful estate planning, and selecting a trusted, willing executor. Effective communication between executors and beneficiaries and regular updates on the progress of the probate process can help mitigate misunderstandings and disputes.

Ultimately, while delays and increased costs may arise in the probate process, it is through careful consideration, proactive measures, and professional guidance that individuals can pave the way for a smoother, more efficient probate journey in Singapore.

How can STMP Help you

Having an experienced hand guiding you through the intricacies of estate law is always helpful. With our wealth of legal experience dealing with probate matters concerning local and foreign wills of both local and foreign individuals, our team is well-equipped with the expertise and knowledge to pre-empt the potential issues that could result in delays and increased costs, providing valuable advice and guidance to minimise the occurrence of such issues and preparing the required documentation to ensure the process is smooth and efficient.

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 on 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 the application of Letters of Administration or Grant of Probate, please feel free to contact our Business Development Team to schedule a consultation. We look forward to working with you.