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Wills by Text

WARNING: Morbid description

Imagine, god forbid, that you are involved in a serious car accident, and help is too far away. At that point, you know you would not be able to make it back home alive, but you want to ensure that your assets are passed on to your loved ones in a specific manner, for instance, your grandmother’s wedding ring is to pass to your eldest daughter, and your holiday home to your brother. But you have not yet made a will to that effect.

Under Singapore law, strict requirements must be complied with in order for a will to be valid. For one, every will must be signed at the end by the testator (or by some other person in his presence and by his direction) in the presence of two witnesses present at that time.

Taking a step back, what if, hypothetically, you could, draft a valid will by way of text message, or, dare I say, by voicemail?

This is precisely what has been proposed by the Law Commission in the UK earlier this week. Armed with a warning that the current legislation on wills is out of step with the digital world and puts people off writing a will, the Law Commission has proposed that text messages, emails and voicemails be considered legally binding records when dividing deceased’s estates. If accepted, this would no doubt rock the world in an overhaul of the pre-existing Victorian laws on wills.

While this proposal is a breath of fresh air in the midst of old laws generally (and gives effect to people’s wishes particularly in situations of emergency), it may create more problems than it solves. At the outset, are these digital memos verifiable? To elaborate, can one conclusively say that the testator was the person creating and/or sending the voicemail/text message? What if there are no witnesses to the act?

The Law Commission has, in this regard, proposed that judges be empowered to decide on the balance of probabilities whether the recording or note is an accurate summary of that person’s wishes. But if the issue is commonplace, would that then not give grieving families more grief, since any ambiguity (where so challenged) will be conclusively decided by an outsider?

At the end of the day, while it may well be time to overhaul the Victorian laws on wills (including the Singapore Wills Act), it cannot be adequately stressed that safeguards must be put in place to ensure that the distribution of an estate goes smoothly without having to put a grieving family through more pain.

Update: The English government has rejected the proposal that the laws surrounding wills be changed to allow people to send wills by text message, citing reasons of potential fraud and exploitation. In light of the numerous practical difficulties associated with the proposal, we would tend to agree with their decision, at least until adequate safeguards against the risks of fraud and/or exploitation are put in place. Stay tuned!

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5 common mistakes when writing a will

5 common mistakes when writing a will

A will is your most important estate planning tool and one of the most critical documents you will prepare.

Erring on the side of caution would be prudent as a small mistake can have severe repercussions on your loved ones, crucially since you will not be around to rectify those mistakes. We have listed below 5 common mistakes to avoid when drafting your will, especially when you have decided to do so without professional help:-

1. Forgetting to update your will when your circumstances change

Under the law, marriage will revoke any will written prior to it, with a few rare exceptions.

A divorce, on the other hand, does not revoke an existing will, so it is important that you update/change your will accordingly to reflect your new circumstances, especially where you have given some part of your estate to your ex-spouse.

The birth of a child is also another situation which renders a review of your will necessary.

2. Omitting a residuary clause

A residuary clause is a catch-all clause that dictates how assets which are not accounted for are to be distributed. This is particularly useful in the event you are not distributing the entirety of your assets by way of specified percentages. A residuary clause covers the rest of your property that is not specifically mentioned in your will, such as those assets you have acquired after the making of the will. Without such a clause, you risk having property that is not covered by the will distributed by the rules of intestacy instead of according to your wishes.

3. Certain assets cannot be distributed through your will

CPF money does not form part of the estate and cannot be distributed by your will. In order to ensure that your CPF savings is distributed in accordance to your wishes, you need to make a separate CPF nomination under the CPF Act.

Property owned by you with another person under a joint tenancy will automatically devolve on the survivor regardless of anything stated in your will; although you can make provisions in the will contemplating the situation whereby your co-owner dies before you, rendering you the sole owner of the property, in which case you will be free to leave it to any person of your choice.

4. Not having 2 witnesses to your will

You need to have 2 witnesses at the signing of your will. Please note that the 2 witnesses must not be beneficiaries in your will, otherwise they risk losing their entitlements under the will. This legal requirement prevents any potential conflict of interests.

5. Failing to consider guardianship of children

You are able to name the guardian who will raise your children (under 21 years of age) in the event of your death in your will. You should choose any guardian carefully and make sure that they are willing to act. Where both parents of the child are still alive, they will typically have to come to an agreement about who is to be the guardian of the child. The guardian is not necessarily the executor, who is tasked with looking after your estate. Guardians and executors have distinctly different roles.
Should you have any questions about the drafting of wills, we will be happy to assist you.

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How is a will dealt with after a death?

Before any petition for a grant of probate is filed, it is imperative that proper inquiries be made as to whether a deceased person left a will.

Once it has been ascertained that the deceased person left a will, the executor can apply for a grant of probate.

What is a Grant of Probate?

A petition for a grant of probate is filed in the name of the executor where is a valid will and where an executor is duly named in the will. In furtherance of his duties, an executor has to furnish the relevant documents, which includes a certified copy of the specific will, to the courts to apply for a Grant of Probate. A Grant of Probate is a court order which gives the executors authorization to administer the estate of the deceased in accordance with his / her will.
Probate matters in the State Courts vs High Court
If the total value of the estate of the deceased person is below S$3 million, the application is made to the State Courts. If the total value of the estate of the deceased person exceeds S$3 million, the application has to be made to the High Court. Where the estate has less than S$50,000 in value, one can apply for the Public Trustee’s Office to act.

Documents required

Typically, it is advisable for the layman to engage a lawyer to manage the application process in view of the relatively complex set of documents required for the probate application.

The documentation required include but is not limited to:-

  1. Ex parte Originating Summons commencing an action in court in the name of the executor. Searches of both the record of caveats and record of probate applications will have to conducted on the day of the probate application. A probate caveat is a caution against the estate to prevent dealings in the estate without the knowledge of the person who files the caveat, typically in a situation where that person intends to challenge the validity of the will. A digital copy of the search report has to be attached to the Originating Summons;
  2. Statement in Form 51 of the Family Justice Court Practice Directions providing certain information in relation to the deceased, his Estate and the applicant(s);
  3. A certified true copy of the Death Certificate;
  4. A certified true copy of the will;
  5. The Administration Oath – the executor who is applying for the right to administer the estate has to give an undertaking to the Court that he/she will distribute the estate and effects of the deceased according to the will’s stipulations and to account for the same;
  6. Supporting Affidavit – The applicant’s Supporting Affidavit has to be filed within a given deadline (usually within two to three weeks from the filing of the Administration Oath); and
  7. Schedule of Assets – the Schedule of Assets has to be filed and exhibited in the Supporting Affidavit. This is essentially a list setting out the deceased’s properties in Singapore as at the date of death and his / her outstanding debts.

Once the above documents are filed, they will be examined. If everything is proper and in order, the Application for the Grant of Probate will be granted and the Grant of Probate can be duly extracted.
Should you require help with the execution of a will after a loved one has passed away, please feel free to contact us.