Wills: Leaving Your Direction For Their Future

There is no greater certainty to life than death; and at law, when a person passes on, all that he has falls into what is called an “estate”.

While many plan for the financial future of surviving loved ones and next-of-kin, for example with life assurance, few leave behind instruction or direction on how the estate is to be dealt with. The way to do this is to write a Will. In the absence of a valid Will dealing with the estate, specific rules in the Intestate Succession Act will apply.

In many cases, the lack of a valid Will merely inconveniences surviving family. In some cases, it may lead to outcomes unintended by the deceased.

What’s a Will and who can make it?

A Will is a written document made by a person of sound mind of majority age (called the “Testator”), which expresses his formal intentions, instructions and directions for family and friends, to take effect upon his death. The law also allows minors who are in certain types of jobs to make Wills (known as “privileged wills”)

There are legal requirements for a Will to be valid. Generally, it must be in writing and signed at the foot of the Will by the Testator in the presence of at least two witnesses who must not be beneficiaries under the Will or their spouses.

There are also practical considerations as well when drafting a Will. If it is written in a non-English language, it has to be translated before submission to a Singapore court. The Will should be as precise as possible in the language used and the original must be kept safely for use upon the Testator’s death. There are also other considerations when a Testator is blind, illiterate or unable to sign the Will.

What can be put in a Will?

One of the advantages of a Will is that the Testator can identify persons to carry out his instructions. He can specify the Executors who will prove the Will to the Court and carry out the administration and distribution of the estate. He can also appoint Guardians of his infant children and direct that certain property be placed with persons (called “Trustees”) for another’s benefit, thus creating a trust.

One of the fundamental purposes of a Will is for the Testator to give away his real and personal property, for example the house, car, money in a bank account and sentimental items like jewellery and books, upon death. He can choose to give his belongings away as a whole estate, in percentages to several beneficiaries, specifically to certain beneficiaries or upon arrangements for trustees to deal with them. He can also give the Executors and Trustees powers to sell, hold and distribute the estate at their discretion and in a manner they deem fit.

A Testator may also leave instructions on how liabilities, funeral expenses and testamentary expenses will be paid for or settled after his death.

Some Testators may wish to include special directions or requests, for example arrangements relating to the funeral. These will remain the voice of the deceased even after their passing and may go some distance in consoling surviving family members.

Are there restrictions or limitations?

Sometimes, an instruction in a Will may contravene a statutory regulation or law, for example creating a trust in respect of a Housing & Development Board (HDB) flat without prior approval from the HDB. Another example is an instruction on the distribution of a Testator’s Central Provident Fund (CPF) monies, which would fail the statutory provisions in the CPF Act. Statutory limitations can also be found in the Administration of Muslim Law Act (for Muslims) and the Residential Property Act (for foreign beneficiaries of real property), among others.

A Testator should also be mindful of other limitations which may apply, for example the rule of survivorship on property held in joint-tenancy, constructive trusts imposed by entering into mutual wills and the effect of marriage automatically revoking a Will.

Seeing a lawyer

For a lawyer to assist and advise a Testator in drafting a Will, he will need to be told of a few things, including:

(a) The personal particulars of the Testator, Guardians, infant children, Executors and beneficiaries

(b) The details of any previous Wills

(d) The details of any liabilities which the Testator would like to deal with

(e) The outline of how the estate is to be distributed and details of any specific arrangements, for example in creating trusts or in distributing sentimental items.

The event of a person passing away is already a heavy burden on surviving family members; and there is never a convenient time for death. Planning early and leaving behind some direction for surviving family is often the least that any person could do.

K K YAP & PARTNERS