Will Making and Probate: Basic Concepts and Issues
Where there is a will, there is a way
The issue of probate stems from two facts concerning human existence. The first is that during their lives people acquire material wealth and property. The second is that these lives inevitably end. As many religions and philosophies remind us, none of us can carry these possessions into the afterlife. Neither can we communicate directly to the living to instruct what should be done with their property once we have passed on. The instructions for the what is to be done with the property must be set beforehand, and in doing so, where there is a will, there is a way.
The basic parts of will making can seem quite intuitive and a matter of common sense. A person cannot speak from the dead, so his words and intention should be put to writing. In the will itself, besides the one bequeathing all the property (also known as the testator), there are three classes of people who are important. The first is the executor, who is the person who is tasked with ensuring that the assets bequeathed in the will is divided in accordance with the wishes of the testator. The second is the beneficiary, who are those named in the will to receive the assets of the testator. The third is the witness (of whom at least two are required) who will ensure that the will is done in proper order in accordance to the genuine wishes of the testator without any coercion or duress. These requirements have been codified into Singapore’s legislation via the Wills Act1.
Thus, will making can at first glance be a simple affair. People have even drafted their own wills. There are also firms which specialize in the making of wills. It would seem therefore that it is unnecessary to use a lawyer to make a will. However, beyond the rudimentary principles of will making as mentioned above, the rules governing will making can be a more complex affair. In fact, there is no such thing as a “simple will”.
For example, not everyone is subject to the same rules of inheritance. While non-Muslims are subject to the Wills Act, Muslims are subject to the Administration of Muslim Law Act (AMLA)2. This means that there are different considerations in crafting a will with respect to Muslims. For example, as per Muslim Law, Muslims can will only 1/3 of their property, of which none should go to a beneficiary. To complicate matters further, not all the assets of Muslims will be divided in accordance to Muslim law, for example a property held in joint tenancy will go to a joint tenant, monies from the CPF account and Life insurance policies will go to the respective nominees. Such complexities have been elaborated through various cases by the Singapore courts.3
Even the basic concepts regarding will making discussed earlier are also subjects to various conditions. For example, while the executor can also be a beneficiary or the estate (and usually is) the witness cannot be a beneficiary of the estate. As with Muslim law there are also assets which cannot be willed away, such as the CPF nomination and joint tenancy properties. Sometimes, there are aspects of the testator him/herself which needs to be considered such as the linguistic ability.
Since wills come into more importance for people who are nearer the end of their lives, such instruments are also often drafted by older people. In this instance, the drafter of the will must be cognizant of the issues regarding the capacity of the individual to distribute his assets in the will. This is governed by the Mental Capacity Act and a formal assessment by medical professional might be needed to ensure that the testator is of sound mind to bequeath his estate. Not adhering to these requirements will mean that the validity of the will may be challenged in court after the testator’s death.
The fact is that if that there are any problems with the will, these problems will not surface until the time which the will is brought to court to show that it is valid. This process of verification is known as probate. If there are problems with the will and matters turn contentious, they are then litigated in the courts by lawyers. This speaks to another reason why it is advantageous to have lawyers draft the will; they are directly familiar with what can go wrong during the process of making the will and hence take safeguards against these pitfalls.
It is of course entirely possible for non-legal practitioners and firms to write both Muslim and non-Muslim wills. However, the training of a legal professional does give an added assurance of a basic understanding of the legal issues involved. On top of this is if things go wrong there are various avenues of recourse. It is well established in various cases that the lawyer is under a fiduciary duty to the client when drafting the will. He is thus held to a professional standard to ensure that he is honesty, competence and diligence4 in drafting the will. There is also a body, namely the Law Society, with disciplinary powers to ensure that these standards are closely upheld. Such institutional measures guarantee an added layer of protection to reassure those seeking to draft a will that his or her wishes continue to subsist even beyond the grave.
1For rules as to formal validity of the will see s. 5 of the Wills Act (Cap. 352).
2S. 111(1) of AMLA.
3Saniah bte Ali v Abdullah bin Ali  1 SLR(R)555; Mohamed Ismail bin Ibrahim v Mohammed Taha bin Ibrahim  4 SLR(R)800; Shafeeg bin Salim Talib V Fatimah Abud bin Talib  3 SL(R)439.
4Rule 5 of the Legal Profession (Professional Conduct) Rules 2015.
How we can help
At I.R.B. Law LLP our experienced lawyers can help you navigate potential pitfalls that your family may encounter with when dealing with your estate. By tackling with these pitfalls early, your loved ones are spare the agony of having to take their issues to the Singapore Courts and unnecessarily spending their hard earned money on legal fees.
Should you wish to write a Will, please contact us at [email protected] or call us at +65 6589 8913 today to schedule an appointment or to find out more.
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