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Communication is key – Appointing of guardian

One would have heard more than once: Communication is key.

Unfortunately, there may be some instances when separated (or divorced) parents fail to communicate their choices of guardian(s) for their children in the event they pass away. In such situations, there may be conflicting choices of guardians in each parent’s will. What happens then?

While not an ideal situation, particularly for the child(ren), pursuant to section 7 of the Guardianship of Infants Act (Cap. 122, 1985 Rev Ed) (the “GIA”), each parent has separate authority to appoint any person to be the guardian of the infant after his or her death, by will or by deed. In this regard, we would clarify that while the term “infant” is not defined in the GIA, a “child” is defined in the Women’s Charter (Cap. 353, 2009 Rev. Ed) as a “child of the marriage as defined in section 92 but who is below the age of 21 years”.

Where one parent passes first, then the surviving parent shall be guardian of the infant, either alone, or (subject to objection by the surviving parent) jointly with any guardian appointed by the deceased parent.

An alternate situation may occur if both parents appoint the same guardians. In such instances, the guardians, after the death of the surviving parent, are required under section 7(5) of the GIA to act jointly.

If, there should be a dispute between the joint guardians, then any of them may apply to the High Court or a Family Court for that Court’s direction under section 8 of the GIA. Such Court also has the power under section 10 of the GIA to remove any guardian from guardianship and appoint another guardian in his/her place. In exercising such power, the Court is to have regard to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them.

At the end of the day, and as set out in the Singapore Court of Appeal case of Re C (an Infant) [2003] 1 SLR (R) 502, there exists an “overriding power of the court, in exercise of the jurisdiction conferred under the Act of either removing that parent as a guardian over the child, if it is established to the satisfaction of the court that it is not in the welfare of the child to be in the custody, care and control of that parent, or appointing another person as an additional guardian to act jointly with the surviving parent”.

As the cardinal principle is succinctly encapsulated at section 3 of the GIA, the welfare of the infant is to be the first and paramount consideration.

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Rights of a beneficiary under a will

There is no dispute that wills are generally regarded as documents of a private nature. Unlike in the movies where the deceased’s lawyer comes to the house to read out the gifts made under the will, there is generally no requirement for anyone to do so.

You may have been told by your late mother before she passed that your family home was yours to inherit. But she did not name you executor of her will, nor are you aware of the terms of the will. You only know that you are to receive a part of her estate, and that your uncle was made executor of your late mother’s will. Unfortunately, you have not always been on good terms with your uncle. Could it be that he is delaying the process to prevent you from receiving what is rightfully yours?

If asking the executor is a futile exercise, what are your entitlements as a beneficiary? Are you entitled to a copy of the will?

Notwithstanding the (generally) private nature of wills, the will becomes a public document after it is filed in Court. By way of background, before the executor is entitled to administer the deceased’s estate, the executor must file an application in Court for the grant of probate, which requires, amongst other things, the executor to file the will.

In this regard, since the will becomes a public document, beneficiaries may apply to Court to request for inspection of the will. This may involve the filing of a sworn (or attested) statement by you of your knowledge of the existence of (and details of) the will.

However, please note that this does not automatically mean that the will will be made available for your inspection. Whether or not the Court grants the application will depend on the circumstances. Generally, if there is strong evidence to show that you are a beneficiary under the will or are otherwise entitled to the estate, the more likely an application will be granted.

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Can I be an Administrator?

Our sincere condolences if you have just lost a loved one.

What happens now? To your knowledge, there is no will (and therefore no executor appointed), and you have been told that your loved one’s estate will be distributed according to the Intestate Succession Act (Cap. 146) (the “Act”).

But who will administer the division of assets?

Generally, the persons who are entitled to apply to be appointed as administrator of the deceased’s estate (and are granted with the letters of administration) are the persons who are entitled to receive distributions under the Act, i.e. in the following order of priority:

  1. spouse;
  2. biological or legally adopted children;
  3. parents;
  4. brothers and sisters;
  5. nephews and nieces;
  6. grandparents; and
  7. uncles and aunts.

What if the persons ahead of you in the list are still in grief, incapable of administering the estate, or are simply not interested in doing so?

Even if you do not have the highest priority in the order above, you may still be appointed as administrator if you obtain the consent of the beneficiaries who rank more highly in the list than you. Their consent, however, should be recorded in writing and attested (i.e. signed under oath).

Please let us know if you require our assistance.

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Who should be my executor?

Technically speaking, anyone of sound mind above the age of 21 (and who is not a bankrupt) can be your executor.

Briefly, an executor is the person responsible for carrying out your wishes as set out in your will in the event you pass on. Their duties typically include making funeral arrangements, applying to Court for a grant of probate to allow them to start distributing your estate, locating your assets, settling any debts which you may owe and distributing your assets per your wishes under the will. Considering the duties of an executor, you would probably prefer to pick someone who you know personally and whom you trust. Crucially, a close relative or friend will often be in the best position to know you and your wishes well, as well as being fond of your beneficiaries.

That said, what happens if after your death your executor decides to reject his or her appointment? Particularly at a time of mourning, being faced with various administrative responsibilities and possibly a court appearance may be seen as burdensome and stressful.

A possible solution could be to alternatively, or in addition to your relative/friend, appoint a professional executor to guide your personally appointed executor through the process and/or to take charge of the more complex administrative duties. This will prove particularly useful in situations where more complex legal matters arise such as where it may be likely that relatives challenge the will (where they are intentionally left out without their knowledge), where assets are located overseas, or where there are trust instruments involved.

Please let us know if you require our assistance.

 

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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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How valid is a handwritten will?

Handwritten wills.

With the widespread reliance on computers, this issue does not often arise in present times, but there may be instances when you feel that handwriting a will is the best way to keep it a secret and to avoid detection from greedy relatives who may otherwise insist on being kept apprised of the situation (or potentially even hack your computer to get access).
But would that handwritten will be valid?

Sometimes referred to as a “holographic will”, such handwritten wills are treated differently in different jurisdictions. In Singapore, for a handwritten will to be valid, the formal requirements of a will should still be met, i.e. rules as to formal validity. This includes the following: The will must be (a) signed by the person creating the will (also known as the testator); (b) (the signature must be) at the end of the will; and (c) the testator’s signing of the will must be witnessed by at least two people. We should mention for good order that these witnesses should not be beneficiaries of the will or spouses of the beneficiaries of the will as the gifts to those beneficiaries may then not be valid.

Quite apart from the formal validity of the will, a real practical issue that handwritten wills have is interpretation. In our view, the risk of handwritten wills being unenforceable is often not because of issues of invalidity, but more because the wills are illegible and the testator’s intentions not abundantly clear. In such instances, your intended gifts may be erroneously made to another person, especially in cases where there is room for ambiguity (e.g. where your children’s names differ by only one letter such as an ‘a’ and ‘o’ or an ‘i’ and ‘l’).

In conclusion, while we would caution against handwritten wills for reasons of clarity, there is no legal impediment (save for formal validity requirements) against hand-writing your will.

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Sham Marriage: does that revoke one’s CPF nomination?

Weddings are synonymously considered with marriage, and most couples (if not all) take great pains to plan for the wedding itself. Flowers, caterers, photographers. Every minor wrinkle must be ironed out before the big day. What is often overlooked, however (and quite understandably), is the implications of the marriage on one’s assets after death.

In this context, in relation to one’s estate, a marriage typically results in the automatic revocation of one’s will and CPF nomination. Pursuant to section 25(5) of the Central Provident Fund Act (Cap. 36), any nomination made shall be revoked by marriage. Similarly, under section 13 of the Wills Act (Cap. 352), a will will be automatically revoked by the marriage. There is an exception, however, in respect of the revocation of wills – if the will is expressed to be in contemplation of marriage, it will not be automatically revoked.

In this regard, if you foresee that marriage is a possibility for you in the future, then we offer our congratulations in advance, but caution that care must be taken in drafting your will.

Sham or void marriages?

Jackie Kennedy once said, “The first time you marry for love, the second for money, and the third for companionship.” As rightly alluded to, people marry for a myriad of reasons. There are even occasions where a marriage is entered into for reasons of convenience, i.e. to help the “spouse” to obtain a work permit. While some have said that there lies some truth in Jackie’s words, the situation sometimes reveals that the “marriages” are sham marriages and in those instances, questions are raised in respect of the distribution of the deceased’s “spouse” assets.

In the case of Soon Ah See v Diao Yanmei [2016] (“SAS v DY”), the High Court considered whether the marriage between Ms. Diao and Mr. Soon (deceased) was a “sham” marriage, and if so, whether the “sham” marriage would necessarily result in the automatic revocation of the deceased’s prior CPF nomination. By way of background, SAS v DY was a case of two sisters who sought to prevent their deceased brother’s wife from obtaining a share of his CPF monies, on the grounds that their marriage was one of convenience to help the woman, a Chinese national, obtain a work permit. The issue of CPF nomination arose because prior to his marriage, the deceased, Mr. Soon, made a CPF nomination in favour of his two sisters in equal shares. Mr. Soon then married Ms. Diao, but his purported marriage was not announced to anybody in his family, and was only discovered after Mr. Soon’s passing when Mr. Soon’s sisters visited the CPF board in relation to the former nomination. In light of the marriage, the CPF nomination was automatically revoked, and Mr. Soon’s sisters therefore commenced the action against Ms. Diao. In relation to the first issue, the Court held that the marriage was a sham marriage but was not therefore void per se. Notwithstanding the validity of the marriage, the Court then went on to hold that the deceased’s prior CPF nomination was not automatically revoked.

While the amendments to the Women’s Charter which took effect from 1 October 2016 supersedes the High Court’s ruling on the first question (since sham marriages are now legislatively construed as being void), attention should still be given to the ruling on the second issue, that a sham marriage does not result in the automatic revocation of a person’s CPF nomination.

While no mention was made about wills in SAS v DY, in our opinion the same principles should apply to a formerly executed will. If a subsequent marriage is deemed void, the will should not be revoked as a result of the marriage.

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Central Provident Fund (CPF) monies, monies nonetheless

When one thinks of one’s assets – one’s CPF savings are quite often overlooked. No doubt this may be partially because one’s CPF savings, like money in a piggy bank, are not the lowest hanging fruit on a tree. It should however be remembered when one is writing one’s will, as the bequest of all your assets in a will, unfortunately, does not include one’s CPF savings.

If you want your CPF savings to be distributed according to your wishes, you should make a CPF nomination by way of the form provided in the CPF website. You may specify who is to receive your CPF savings, and in what proportion each nominee should receive, upon your demise. Such distributions may be made in cash via cheque or GIRO, in their CPF accounts, or by monthly payments (if made to children with special needs).

We should mention however that the CPF board does not permit nominations to be made by category (e.g. to “all my children in equal proportions”). Therefore, you must also remember to update the CPF nomination where there are changes in circumstances (e.g. marriage, child birth, or death).

If no nomination is made, your CPF savings will be transferred to the Public Trustee’s Office on your demise, for distribution to your family members under the Intestate Succession Act (Cap 146) (the “Act”) if you are not Muslim, or under the Inheritance Certificate if you are Muslim. For example, under the Act, if an intestate dies leaving a surviving spouse and issue, the spouse shall be entitled to one-half of the estate. We should also mention that a fee will be charged for such distribution.

While you may agonise over how your CPF savings may only be used in certain circumstances, remembering that you have assets in the form of CPF savings (and making the due nominations) will allow you to provide more for your loved ones in the event of your demise, in the way you wish.

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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.