Testamentary Wills

Testamentary Capacity

It is crucial that the person making the will (known as the testator) has what the law calls testamentary capacity to make the will.

The legal rule on testamentary capacity was set out in a classic English case of Banks v Goodfellow (1869-70) LR 5 QB 549 at 565:

"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

This has been endorsed by the highest court in Singapore in Chee Mu Lin Muriel v Chee Ka Lin Caroline [2010] 4 SLR 373 (CA) at [37].

A lack of testamentary capacity cannot be automatically inferred from the fact the testator suffers from a mental illness or disability. However, if the testator is shown to have suffered a serious mental illness that resulted in a loss of capacity prior to the execution of the will, then the court may presume that the illness continued and, accordingly, the testator’s lack of testamentary capacity: Ng Bee Keong v Ng Choon Huay and others [2013] SGHC 107.

That is why in some cases, e.g. the testator is very old or has certain mental conditions such as dementia, it would be prudent for the testator to obtain a medical report from a doctor opining that that testator has the requisite mental capacity to make a will.

Attestation Clause and Witnessing

This is possibly one of the important parts of the Will. A Will has to be executed by testator while witnessed by two adult witnesses who are both present at the same time. The witnesses must not be beneficiaries of the estate under the will nor spouses of beneficiaries. If a witness is a beneficiary, the Will may still be valid but not the gifts to that beneficiary.

Will is Revoked Upon Marriage

A Will is automatically revoked upon a testator's subsequent marriage unless the Will was made in contemplation of such a marriage: section 13 of the Wills Act. This is the case also if a marriage ends in divorce and the testator re-marries. The re-marriage will revoke the Will made before the re-marriage.

Adequate Provision for Dependants

Parents should ensure that their Wills make adequate provision for their dependants. Otherwise, the law may intervene to redistribute: the Inheritance (Family Provision) Act. A dependant under the Act is (which may seem rather archaic):

• a wife or husband;

• a daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself;

• an infant son; or

• a son who is, by reason of some mental or physical disability, incapable of maintaining himself.

Under the Act, if provisions for dependants are not adequate, they may apply to the court to ask for a redistribution of the testator's assets so that the dependants will get a fair provision.

Nonetheless, a testator may discriminate between the children as long as there is adequate provision. So, some parents may give more to one child. Some parents also give only nominal sums e.g. S$1.00.

Remuneration for Executors & Trustees

If there is no express clause in the Will providing remuneration for the services of the executors & trustees, then they may only rely on the Probate and Administration Act where a commission not exceeding 5% is allowed on assets collected by the executors & trustees. Otherwise, the Will should expressly make provision.

Substitute Beneficiaries if Beneficiary Predeceases Testator

For example, if a testator says in her will that a certain property is to be shared by her children, this may be taken to mean that it is a gift to the whole category of her children and not a gift to each and every child. If it is the former, then only the children who are alive at the time of the testator's death will receive the gift. A child who predeceased the testator may not have her own children enjoy her share of that gift (Re Will in Loke Soh [1999] 3 SLR 370). Hence, the testator should consider appointing substitute beneficiaries in the event that a beneficiary predeceases her.

Muslims

Different legal rules apply to Muslims. Islamic law may restrict a Muslim in terms of how the testator wishes to distribute and give assets.

Other Special Wishes

It is common for people to make gifts to certain specific charities or their church in the will. They may also state their wishes as to how their bodies will be dealt with e.g. burial or cremation, how to deal with the ashes, body to be donated for medical research, wishes about the conduct of the funeral. While such special wishes may be included in the will, the testator should still inform loved ones beforehand or otherwise they may not open the will only after all these things have already been done!

For more legal information on wills, check out a more comprehensive article of mine here.