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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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Making A Lasting Power of Attorney – Appointing someone to make your decisions

A lasting power of attorney (or the “LPA”) is a document which allows an adult (i.e. someone who is at least 21 years of age) to voluntarily appoint another person (or persons) to make decisions on his behalf in matters of, among other things, personal welfare and/or property and affairs, in the event he or she loses his or her mental capacity.

While loss of mental capacity is often linked to age-related issues such as dementia, people of virtually any age can lose their mental capacity due to neurological diseases or accidents. Mental capacity may however only be assessed on a case-by-case basis and cannot be assumed based on a medical condition alone.

As in the case in wills, drawing up a lasting power of attorney is often thought about as one advances in years. As with most things, there is no hard and fast age at which one should consider these matters. We would therefore recommend that every person of age make an LPA as early as possible, while one is still mentally alert, lest a tragedy strikes and it becomes too late after one becomes mentally unsound.

Again, much like wills, the decision to sign an LPA is often not just for the benefit of oneself (i.e. since one can choose a trusted friend or advisor to make one’s decisions if the time comes), but to prevent one’s loved ones from being faced with the stress and difficulties that come with applying for a deputyship order if one loses mental capacity without an LPA in place.

Quite recently, the process involved in preparing an LPA has been greatly streamlined and simplified. You can now access an e-service portal (https://eservice-msf.msf.gov.sg/) which allows you to, among other things, prepare your LPA application and update your particulars online.

Please contact us if you need any assistance in preparing or certifying your LPA. We will be happy to guide you through the process.

For Singaporeans: Notwithstanding that the Great Singapore Sale has passed, there is currently an LPA application fee waiver in place until 31 August 2018 for the making of an LPA Form 1!
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I have property overseas, can I still make a will in my home country?

What happens to my foreign real property/land when I die? Some may say this is a first world problem, and it is hard to fault them. As real estate is typically governed by the law of the land, there may be conflicts of laws issues arising if, for instance, your will is governed by Singapore law while your property is located elsewhere.

Each jurisdiction has its own specific rules for dealing with real property (land) and how it is to be dealt with upon the passing of its owner. For example, Singapore’s Residential Property Act (the “Act”) is designed to restrict or at least control the extent to which foreign persons can own “residential property” (defined to mean, essentially, landed property and not, for example, condominiums). Under the Act, no residential property can be owned by or held on trust for a foreign person without getting appropriate permission from the authorities (this process has been facilitated in the case of residential property located in Sentosa, an island resort in Singapore).

If the owner of residential property passes away, leaving that property to a foreign person in his or her will, that foreign person is effectively prohibited by the Act from inheriting the property. Instead, the deceased person’s personal representative(s) must take steps to sell the property to a Singapore citizen or persons approved by the authorities within 10 years; the proceeds of sale will be passed to the foreign person designated in the will.

Who would have thought that owning property/land overseas would be such a hassle after death?

What can you do? First and foremost, before you make a will, you must remember to list out all your overseas assets carefully and inform your lawyer. Otherwise, notwithstanding that there is often a “catch-all” clause at the end providing for the rest of your assets, your foreign property may be ignored, mismanaged and squandered.

Additionally, depending on whether that foreign jurisdiction will recognise the Singapore will or whether the foreign jurisdiction permits the writing of two wills, you may wish to consider making two (or more) wills, each specific to where your assets are located. However, extreme care must be taken to ensure that the wills do not contradict (or worse, revoke) each other.

Unfortunately, there is no easy and fast rule on managing your overseas real estate nor is there a simple answer to whether a particular foreign jurisdiction will accept a Singapore will. Much will depend on which jurisdiction is applicable In this case, you may wish to appoint a foreign counsel to help you wade through these complicated waters.

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Planning for your stepchildren

5 common mistakes when writing a will

When a non-Muslim person passes on without leaving behind a valid will….

When a non-Muslim person passes on without leaving behind a valid will (or if the will cannot be located), that person is said to have died intestate and the distribution of that person’s estate is governed by provisions of the Intestate Succession Act (the “ISA”). The default rules under the ISA, however, often do not reflect the true intentions of the deceased person, particularly where the deceased had stepchildren to whom he or she wanted to leave his or her inheritance.

Let’s look at the case of Low Guang Hong David and others v Suryono Wino Goei….

This issue was explored in the case of Low Guang Hong David and others v Suryono Wino Goei [2012] 3 SLR 185 (“Low Guang Hong”). In Low Guang Hong, the plaintiffs were one Mr Low (deceased)’s children from his first marriage, and Mdm Lina (deceased)’s stepchildren. Mdm Lina was Mr Low’s second wife, and Mr Low and Mdm Lina had no children between them. Mr Low’s estate was bequeathed to Mdm Lina upon his death.

By way of further background, it was said that the plaintiffs were treated by Mdm Lina as if they were her own children, while an unsigned will apparently leaving Mdm Lina’s estate to the plaintiffs was found in her safe deposit box with a bank after her demise, no evidence was adduced as to how the unsigned will came about.

In Low Guang Hong, the plaintiffs sought a declaration that “child” under the ISA was to be interpreted to include a stepchild. In this way, the plaintiffs would be deemed to be Mdm Lina’s “children” under the ISA and they would then be entitled to Mdm Lina’s estate to the exclusion of her only brother, the defendant in the action.

Under section 3 of the ISA:

“child” means a legitimate child and includes any child adopted by virtue of an order of court under any written law for the time being in force in Singapore, Malaysia or Brunei Darussalam

However, after analysing the ISA and certain other statutes, including the Women’s Charter and the Maintenance of Parents Act, the Court refused the declaration sought by the plaintiffs. Detailed reasons for the Court’s decision are set out in the learned judge’s decision, but what we wish to highlight is this issue arising from not having a valid will, i.e. that the failure of intestacy rules to achieve the outcome that the deceased might have desired.

Since these default rules apply in all (non-Muslim) cases of intestacy, more likely than not, this one-size-fits-all approach results in a distribution that is unlikely to be what the deceased would have desired.

If it was true that the unsigned will was prepared by Mdm Lina (but it was ultimately not properly executed due to some unfortunate reason), it would have meant that Mdm Lina intended to bequeath her assets to her stepchildren on her death, and the rules of intestacy would not have achieved that goal for her.

 

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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.

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Different Types of Wills

incisivelaw-different-types-of-wills

While I have gone through the reasons on “Why should I make a Will”, this article will introduce the different types of wills available:

Standard/Simple Wills

A standard will details the wishes of the testator (the person writing the will) regarding asset distribution upon the testator’s death. Generally, standard wills may be revoked or altered at any time prior to one’s death.

However, please note that the marriage of a testator who has made a will prior to his marriage will automatically render the will invalid and the testator will have to draft up a new will.

Mutual Wills

Mutual wills are usually drafted by married couples because they are founded on the agreement of both parties in the marriage that the surviving party will not change his or her will after the other dies. Mutual wills are therefore an exception to the law that wills can always be revoked. The agreement can be made orally or in writing on a separate document.

For a mutual will to be valid, both parties must demonstrate clear intent to create the same will, agree to the same distribution of their mutual assets, and agree not to revoke the wills.

The agreement will typically provide that:

  • each of the parties will leave their property to mutually agreed beneficiaries;
  • in the course of their joint lifetimes, neither party will revoke or amend their wills in any way without the consent of the other; and
  • upon the death of one party, the survivor cannot revoke the will or alter it so as to change the mutually agreed beneficiaries.

It is important that the beneficiaries are informed of the existence of the agreement, as they have the right to enforce the agreement.

Such wills may prove to be most useful in blended-family situations whereby both parties want certainty that the children will not be treated differently from what was previously agreed. Mutual wills are also particularly helpful to address concerns that the surviving spouse may remarry and leave nothing to the children of the first marriage. However, the clear disadvantage of mutual wills is the fettering of discretion of both parties with respect to asset distribution.

Mirror Wills

Mirror wills are two separate wills of a typically married couple, but the terms of each will are precisely identical to the other. However, the distinguishing factor from mutual wills is that each party is free to revoke the will at any time contemplated, without informing or obtaining the consent of the other party. This provides a lot more flexibility when one party pre-deceases the other, and the surviving party wishes to change the terms of the will, as compared to a mutual will.

Living Wills

A living will is known as an Advanced Medical Directive in Singapore which is a written statement that you do not want the use of any life-sustaining treatment to be used to prolong your life in the event you become terminally ill and unconscious and where death is imminent. You can find out more about an AMD here.

The type of will you may wish to have drawn up depends on your individual concerns and the unique circumstances in which you are in.

If you wish to find out what is the most suitable type of will, please feel free to drop an email to wills_enquiries@incisivelaw.com

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Wills Registry – Making sure your will can be found

What is a Wills Registry?

In Singapore, there is no central storage area for wills, however the Public Trustee maintains a confidential Wills Registry which serves as a central information centre for all wills that are duly registered with it.

Why do we need the Wills Registry?

It is not compulsory for anyone to register information about his/her will. However, when the time comes, it is crucial that the loved ones left behind are able to locate your will in order to enforce your will.

For example, the next-of-kin or beneficiaries may believe that the deceased has drawn up a will but are unable to confirm that as they do not have a copy of the will in their possession.

Information kept by the Wills Registry

The following information is kept by the Wills Registry:-

  1. Details of the person making the will i.e. testator;
  2. Date of the will;
  3. Details of the person who drew up the will; and
  4. Details of where the will is held.

Please note that the Wills Registry does not keep a copy of the will itself and therefore the safe keeping of the physical will is very important.

How do I deposit my will information with the Wills Registry? 

The online deposit form can be found at https://www.mlaw.gov.sg/eservices/pto/welcome.xhtml under “Deposit of New Will Record”.

Who is entitled to apply to make a search for the information held by the Wills Registry?

All information deposited  in the Wills Registry is strictly confidential. Only the following people may make a search for information related to a will:-

  • The person who made the will (proof of identity must be provided).
  • The solicitor who is helping someone draw up any further will.
  • The solicitor acting for the estate of someone who has died (if they produce the death certificate).
  • The next-of-kin of someone who has died (if they produce the death certificate and documents showing their relationship to the person who has died).

Charges

Fees  (inclusive of GST) are shown below.

Payment for the deposit of will information must be made online via debit card, credit card or direct debit.

How do I carry out a search on will information with the Wills Registry?

You will need to access the online search form at https://www.mlaw.gov.sg/eservices/pto/welcome.xhtml  and click on the link “Search for Existing Will Record”.

How long will the registered will information be kept in the Wills Registry?

The will information will be kept in the system for 120 years from the date of birth of the person making the will.

If you have any question related to Wills, Trusts and Property Planning in Singapore, feel free to drop an email to wills_enquiries@incisivelaw.com.

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Advance Medical Directive – A Living Will

In general, people tend to shy away from the topic of death, citing reasons such as superstition to a fear of confronting sad realities.

However, with the advancement of medical technology, life can be extended. Mechanical ventilation can now be used to support the body of a brain dead patient or medical procedures can be administered to a terminally ill patient to prolong the process of dying when death is imminent. As much as innovation in medical technology is welcome, there is a great deal of debate as to whether this is right or wrong. Many people therefore look to make living wills which tell doctors they do not want to be put on life support when they are terminally ill and death is imminent.

An important document for the terminally ill

In Singapore, the Advance Medical Directive Act (“AMDA”) was passed in 1996 to authorise the use of Advance Medical Directive (“AMD”) in Singapore. The law allows Singaporeans who are above the age of 21 and who are of sound mind, some control over their deaths by allowing them to sign an advance medical directive (“AMD”) declaring that he or she does not wish to receive extraordinary life-sustaining treatment in the event of terminal illness and unconscious or incapable of making rational judgement.

What is a terminal illness

Certification of “terminal illness” is a stringent process requiring unanimous agreement by 3 doctors. This is to ensure that treatment is not wrongfully withheld if a patient has a chance at recovery, attributable to a single doctor’s judgment. After all, this is literally a matter of life and death.

How does a AMD kick in

The making of an AMD must be witnessed by two persons of at least 21 years old, one of whom must be a doctor, who has the legal responsibility of ensuring the patient is clear regarding the medical implications of making an AMD.

To avoid any conflict of interest, witnesses must not be persons who stand to benefit from the death of the patient, so a family member cannot be a witness.

Guidelines prescribe that as a matter of good practice, doctors should encourage a person making an AMD to discuss his decision with his family so that they are not kept in the dark. In any case, a duly registered and witnessed AMD is binding in spite of the family’s objections.

Making an AMD

The AMD form can be obtained from your doctor’s or accessed free online or you can make provision through your solicitor.

In a medical emergency when a patient becomes terminally ill and is no longer in a position to articulate his or her wishes, conflict amongst family members as to terminating life-sustaining treatment is then likely to arise. In circumstances like this, the AMD form may come in handy for people who are absolutely certain they do not wish for extraordinary life-sustaining treatment to prolong their life.