Wills

What is a Will – a Will is an express declaration made by a person (known as the “Testator” or “Testatrix”) as to how his / her property / properties are to be distributed when he / she dies.

Henceforth, for ease, reference to the male gender includes the female gender, and the term property includes more than one property as well as assets. Singular description includes plural.

The Will takes effect when the Testator dies.

Who can make a Will – anyone who is 21 years of age and above and is of sound mind.

Why make a Will –

  1. The Testator can decide who shall receive his property. This person or persons are known as “the Beneficiary / Beneficiaries” (hereinafter referred to as “the Beneficiary”).
  2. The Testator can also decide in what proportion or amount he wants the Beneficiary to receive it, rather than leave it to the law to decide. If there is no Will, the law allows only a certain category of person(s) in a certain order to receive the property in a fixed proportion. The Testator can thus provide for the Beneficiary in a proportion or amount according to his desire. The Testator can also provide for other people who are not included in the intestate list under the law if he wants to, such as a friend or a charitable organisation or other groups / institutions.
  3. The Testator can also decide who he wants to appoint to be the Executor / Trustee and Guardian (if there are children below the age of 21) according to his choice to administer the estate / look after the minor children, respectively.

How to make a Will –

  1. In writing.
  2. The following details must be included: name of the Executor / Trustee; name of the Beneficiary; identify the property / asset; who gets what.
  3. It must be signed by the Testator freely and voluntarily.
  4. The signature of the Testator must be witnessed by at least 2 other persons, who must be at least 21 years old. All 3 of them must sign the Will in the presence of each other.
  5. The Beneficiary, or the spouse of a Beneficiary, cannot be one of the 2 witnesses. But if there are 2 other witnesses, then the Will will not become invalid if the Beneficiary or his spouse is the 3rd
  6. The Executor can be one of the witnesses.

Executor – a person that the Testator appoints to attend to all the necessary formalities prior to the distribution of the estate. This person applies for the Grant of Probate, pays off the debts and converts the assets to cash (if required). (Attends to the 1st part prior to the distribution).

Trustee – a person the Testator appoints to attend to the distribution of the estate in accordance to the terms of the Will. (Attends to the 2nd part to distribute).

Usually, the Testator will appoint the same person to be the Executor and Trustee. The Executor / Trustee must be a person(s) aged 21 years and above and must not be an undischarged bankrupt. It is best to get his consent before appointing him, since he must understand his duties and responsibilities. It is also recommended that a copy of the duly signed Will be given to the Executor / Trustee so that he can attend to the necessary as soon as possible. It is recommended to appoint someone younger than the Testator so that he may survive the Testator and be able to carry out the duties. It would also be prudent to appoint a substitute or alternate Executor / Trustee as a precautionary measure in case the appointed Executor / Trustee were to predecease the Testator or become legally incapable of performing the function.

Normally, one Executor / Trustee is sufficient.

However, if there is any Beneficiary below the age of 21, it is required to appoint 2 Executors / Trustees so that the interest of the minor is properly protected, since the estate will actually be vested in the name of the Executor / Trustee when the Grant of Probate is issued by the Court, and the property will be held by them for the benefit of the minor. It provides a safeguard for the minor.

The debts and funeral expenses must be paid off first before the assets can be distributed.

Guardian – if there are children below the age of 21, the surviving spouse shall have the right of guardianship. However, the Testator may appoint another person to jointly exercise guardianship together with the surviving spouse.

Beneficiaries – can be an individual or an organisation, group or institution. Must be clearly identified.

Property – must be clearly identified. Includes cash; money in banks or other institutions; jewellery; personal belongings, overseas property or assets etc. But distribution of landed property overseas will depend on the laws of that country.

What cannot be included in a Will:

  1. Property or asset held in joint names, such as house; bank account etc. Such a property or asset automatically goes to the surviving person or persons.
  2. Insurance policies where beneficiaries have been named.
  3. Property or assets not belonging to the Testator.
  4. Property or assets already given as a gift prior to the death of the Testator.
  5. Money in CPF account.

The CPF Act governs the money in the CPF account of each account holder. A separate nomination has to be made by the person pursuant to the CPF requirements (CPF Form and 2 witnesses). If there is no CPF nomination but

there is a Will, and even if the Will includes the distribution of money in the CPF account, the money will not be distributed according to the Will but will instead be distributed accordingly to the Intestate Succession Act.

Amendment / Revocation – During the course of his lifetime, the Testator may amend his Will or may even revoke his Will.

What happens after the death of the Testator – The Executor / Trustee applies to the Court for a Grant of Probate, so as to administer the estate in accordance with the law and distribute the property in accordance with the terms of the Will after paying off all debts.

If the Executor / Trustee predecease the Testator and if no substitute Executor / Trustee has been appointed in the Will, a family member or interested person may apply to the Court for Letters of Administration with Will annexed.

What happens if there is no Will – A family member, relative or interested person may step forward to apply to the Court to be granted Letters of Administration to administer the estate in accordance with the laws of Singapore. The Intestate Succession Act sets out the people who will inherit a share of the property / asset of the deceased and in what proportion. It is a fixed class of persons and the shares are in fixed proportion.

If the value of the property / asset of the deceased is below S$50,000.00, excluding CPF monies, the Public Trustee may be approached to help administer the estate, and provided there are no complicated situations or situations where competing interests are likely, the Public Trustee will do so in accordance with the Intestate Succession Act.

INTESTACY RULES UNDER THE INTESTATE SUCCESSION ACT

  1. Surviving spouse, no children, deceased parents       –       100% to spouse.
  2. Surviving spouse and children           –         50% to spouse, 50% to children to be shared equally if there are more than one.
  3. Surviving spouse and parents, no children        –       50% to spouse, 50% to parents to be shared equally if both are alive.
  4. No surviving spouse and children        –       100% to parents to be shared equally if both are alive.
  5. No surviving spouse, children and parents        –       100% to siblings to be shared equally if there are more than one.
  6. No surviving spouse, children, parents, siblings       –       100% to grandparents to be shared equally if both are alive.
  7. No survivors mentioned in (f) above       –       100% to uncles & aunts to be shared equally if there are more than one.
  8. No next-of-kin       –       100% to Government.

The above is a general write-up. I will be happy to discuss with you to address your specific needs.

Ganesh S Ramanathan (Advocate & Solicitor)

(M/s Karuppan Chettiar & Partners)

62999500

ganesh@kcp.com.sg

May 2020