A will may turn out the way one least expects it to, contrary to an expectation one may have had.
The general rule is that you can leave your property to anyone you want under your will. This encompasses electing to leave nothing to your family members.
However, in some situations, the will does not sufficiently provide for the welfare of the deceased’s dependants. The law therefore seeks to mitigate the harshness of a testator’s freedom to dispose property through the Inheritance (Family Provision) Act of Singapore (“the IFPA”), which was largely inspired by the United Kingdom’s Inheritance Act 1975 (“the IA 1975”).
IFPA offers a recourse to dependents who are inadequately provided for but only when extremely stringent conditions are met as the courts are cautious not to undermine testamentary freedom.
- Firstly, only four classes of persons are considered as dependants for the purposes of the IFPA:
- a wife or husband;
- a daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself;
- an infant son; or
- a son who is, by reason of some mental or physical disability, incapable of maintaining himself.
It is noteworthy that illegitimate children are not entitled to apply under the IFPA.
Secondly, to highlight the strictness of the application of the IFPA, in APZ v (by his litigation representative MC) v AQA and another, the Court emphasized in 2011 that “the purpose of the IFPA is limited to the provision of reasonable maintenance; the legislation is not for the purpose of obtaining legacies out of the testator’s”.
The test of lack of reasonable maintenance, as noted by the Court, is completely objective and not subjective. Payments which facilitate the dependant’s ability to cover the cost of his or her daily living expenses at whatever standard which is applicable to him fall under “reasonable maintenance” but payments for luxuries would not.
More recently, on 15 March 2017, the IA 1975 in the UK was thrown into the spotlight when the UK Supreme Court in Ilott v Mitson  UKSC 17 overturned a Court of Appeal decision and reduced the maintenance award to an estranged daughter by more than half. In doing so, the Supreme Court reiterated that the concept of maintenance “must import provision to meet the everyday expenses of living” and precludes furnishing the claimant with every resource which would be advantageous his or her quality of life.”
“must import provision to meet the everyday expenses of living” and precludes furnishing the claimant with every resource which would be advantageous his or her quality of life.”
Locally, in AOS v Estate of AOT, deceased  SGCA 30, the testator executed a will which wholly excluded his surviving wife. On the facts, the surviving wife was the owner of several properties gifted by the testator of which she could collect monthly rental income from and was more than sufficient for her monthly expenses. The threshold of reasonable provision had therefore been met by the testator and the Court rejected stepping into the shoes of the testator to interfere with his clear and express wishes. The court reiterated that the discretion under the IFPA is one which should be sparingly exercised.
In deciding whether or not to make the maintenance order, the court will take into account several factors including but not limited to:-
- The dependant’s financial situation
- The conduct of the dependant in relation to the deceased
- The reason that operated in the deceased’s mind in not making provisions in the will
As such, one should be aware of the possible implications of the IFPA when making a will to avoid having the courts step in to provide for a disposition of one’s estate contrary to one’s intentions.