Having a valid and enforceable will (Will) is a crucial aspect of estate planning. A Will is a legal instrument which specifies how your assets are to be distributed upon your death. Having a Will helps to prevent disputes among family members and allows your wishes to be implemented as you have intended after your demise. In Singapore, the Wills Act 1838 is the primary legislation which governs the creation, execution, validity and enforceability of Wills.
The objective of this article is to guide our readers on the key aspects of a Will and to set out the process and requirements of drafting a valid and enforceable Will in Singapore.
While it is possible to draft a Will without the assistance of lawyers (e.g. (a) by using templates and guides sourced from online Will-writing services; or (b) by enlisting the assistance of other service providers who are not legally-trained), engaging a lawyer would provide additional assurance that your Will is valid, legally enforceable, unambiguous and accurately reflects your wishes.
Further, a lawyer can provide valuable advice on complex issues such as tax implications and trust arrangements. At the minimum, we would recommend you to consider consulting a lawyer to review the final draft of the Will for a broad sense check on the content of the Will, and to ascertain its validity and enforceability under Singapore law.
If there are any suggestions and/or legal queries, please feel free to contact the author, Waltson Tan, at: waltson.tan@28falconlaw.com
Given that your personal circumstances may change over time, it is especially important to ensure that your latest Will reflects your intentions at any particular point in time. Accordingly, we recommend that individuals should update their Will upon the occurrence of major life events such as marriage, divorce, the birth of children, and when there are material changes to your financial situation.
A good rule of thumb is to regularly review your Will to ensure that it remains current and unambiguously reflect your latest intentions. If the language used in your Will is open to more than one possible interpretation, this can cause misinterpretation and disputes. Separately, if there are complexities in your specific situation (e.g. familial or financial), it is important to address these nuances explicitly in your Will.
Under Singapore law, a Will is automatically revoked upon marriage unless it is specified to be made in contemplation of marriage. Given that a divorce would not cause the automatic revocation of a Will, it is important to consider whether to revise your Will if there are changes to your circumstances and wishes after such an event.
(a) Age and mental capacity: The testator (i.e. the person making the Will) must be at least 21 years old and of full mental capacity (i.e. not of unsound mind). This is a safeguard under the law to ensure that the testator is capable of understanding the implications of their decisions.
(b) Identity of the testator: In your Will, the full name, personal identification number or NRIC number, and latest residential address of the testator should be set out to clearly identify the testator.
(c) Revocation of previous Wills: It is typical to have a revocation clause in a Will, which revokes all previous wills and codicils. The purpose is to ensure that only the latest Will is valid and to avoid having to resolve any conflicts of intentions provided in an earlier Will.
(d) Appoint executor(s): One or more executors may be appointed to carry out the terms of your Will and manage the distribution of your assets thereunder. It is permissible for executors to also be beneficiaries under the Will. The executor is typically the person responsible for making the application for the Grant of Probate with the Singapore courts to obtain approval to manage the testator’s assets after the demise of the testator.
(e) List of assets: The testator should clearly list out all the assets to be distributed according to the Will, and those which may be excluded under the Will (if any).
(f) Assets overseas: In relation to assets which are outside Singapore, you should consider the legal requirements of the jurisdiction where the assets are situated. There may be instances where Singapore law would not apply to the management and distribution of such assets. In such cases, the testator should have separate Will(s) for assets in foreign jurisdictions.
(g) Beneficiaries and distribution of assets: The testator should clearly specify the beneficiaries and the assets they will receive from the testator under the Will. A well-drafted Will should also include details on the manner in which any residual assets not specifically mentioned in the Will should be distributed.
For minor beneficiaries, you may wish to set up a trust to manage their inheritance until they reach (or exceed) the age of majority (i.e. 21 years old, at the time of writing). On this note, you should also appoint (or provide such instructions to appoint) a reliable trustee to manage the trust in accordance with your wishes.
(h) Real estate: Especially in the Singapore context, real estate may form a significant part of your estate. If you have a property which is mortgaged, you should specify how the mortgage should be settled after your demise. Whilst drafting your Will, you should also consider whether to purchase additional insurance coverage to protect your assets in the event of an untimely demise. Do note that real properties held in joint tenancy, such as your Housing & Development Board (HDB) flat or your condominium unit, will pass to the surviving joint tenant by right of survivorship and thus, cannot be distributed through a Will.
(i) Digital assets: In the modern era, digital assets may form a sizeable proportion of your assets. If you have any such monetisable assets, you should provide instructions on how to manage or deal with these assets. Such assets may include your online gaming accounts, social media accounts, and digital currencies.
(j) Tax implications: There may be tax implications in relation to your bequests, such as estate duty or inheritance tax, which may apply to certain assets. You should seek advice from a tax professional to minimise any tax liabilities which may impact your beneficiaries.
(k) Central Provident Fund (CPF) monies: Under Singapore law, CPF monies do not form part of a deceased member’s estate and are not covered by a Will. You should make a CPF nomination through the CPF Board to designate beneficiaries for your CPF savings.
(l) Bequests to charities: Some testators include charitable bequests in their Wills to support causes they care about. In such instances, the charities and the frequency and / or amount of assets to be donated should be clearly specified in the Will. The best practice would be to reach out to the charity to confirm that the bequest aligns with their requirements and capabilities.
(m) Ownership of businesses or companies: If you own a business or a company whether solely or with other shareholders, you should set out your succession plan in your Will. This could involve transferring your share ownership to a family member, the other shareholders, selling the business pursuant to certain pre-determined consideration, terms and conditions, or appointing a professional manager to continue running the business. Estate planners, working with legal advisors, are well-placed to advise on structuring the succession plan during the Will-writing phase. This could involve the purchase of certain insurance coverages to finance any of the abovementioned transactions.
(n) Guardianship of minors (e.g. your children): If there are minors under your care, such as your children, it is recommended that you appoint persons whom you trust to be the guardian of your children. If you have specific instructions on the care of such minors, you should stipulate it in your Will.
(o) Beneficiaries with special needs: If you have beneficiaries with special needs, you may wish to consider creating a special needs trust to provide for their long-term care, ideally without affecting their eligibility for government assistance programs.
A Will must be in writing and signed by the testator. The Will must be executed in the presence of at least two witnesses. The witnesses signify this by signing on the Will in the presence of the testator after the testator executes the Will.
It is important that the witnesses to the Will are not also beneficiaries of that Will. The consequence is that if a witness is a beneficiary under the Will, their inheritance could be invalidated, though the rest of the Will remains valid.
(a) Safekeeping your executed Will: Keep your Will in a safe and accessible place, as the original Will is required when making an application for a Grant of Probate in the Singapore courts. You should inform your executor, a trusted family member and / or friend about where you have kept your Will. You may also consider to deposit your Will with a law firm or a Will custody service provider for a small fee.
(b) Keep only one copy of the Will: Do not make multiple copies of your Will to prevent any confusion amongst your beneficiaries and executor(s) as to the version to consider as the original Will.
Having a valid and enforceable Will drafted without any ambiguity as to your intentions is imperative in ensuring that your assets are distributed according to your wishes and that your loved ones are taken care of after your demise.
It is our hope that by explaining the key considerations and legal requirements of preparing a Will in this article, you now have the requisite information to prepare a valid, enforceable and well-drafted Will under Singapore law.
If there are complexities or challenges in preparing your Will yourself, or if you would like to have an independent view on the language and your intention as set out in your Will, we recommend that you consult a Singapore-qualified lawyer for assistance.
*****
Our firm has the requisite expertise in drafting Wills for our clients, including those with complex wishes and multiple classes of assets.
The author, Waltson Tan, is a corporate lawyer trained in London and Singapore. He is qualified as an advocate and solicitor in Singapore, and has more than eight years of post-qualification experience.
Waltson focuses his practice on mergers and acquisitions, private equity, joint ventures, investment funds and other general corporate and commercial transactions. He has also represented numerous leading multinational organisations on a broad spectrum of corporate, regulatory, cross-border restructuring and employment matters.
Waltson also advises clients on a monthly and yearly retainer basis, where he provides dedicated services to each client in relation to the issues which clients face, including general corporate and employment related matters.
Prior to joining the firm, Waltson practised at some of the top law firms in Singapore and thereafter, at a leading international law firm, which was the second largest law firm in the United States and one of the ten largest in the world.
If you require further information and/or expert guidance on the above or any other area of law, you may wish to contact the author of the article, whose details are as follows:
Waltson Tan Director +65 8079 0028 waltson.tan@28falconlaw.com |
Office address: 101A Upper Cross Street #13-11, People’s Park Centre Singapore 058358Singapore |