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TRUSTS, WILLS AND PROBATE

Lecture 1
Intro and Succession
Basic Structure of a Will

TWP
Key features of the subject
- Lecture on Thursdays, 2 4 pm in LT 20
- Lab 2 hours per week
- P03 & P06
Tutor: Cynthia Rodrigo
- P01 & P05
Tutor: Mathavan Devadas
- P02 & P04

- Materials on OLIVE

Tutor: Wong Khai Leng

Assessment
Project 1 Drafting a Will
Project 2 - Probate
Class Participation
Exam
TOTAL

- 20%
- 20%
- 10%
- 50%
100%

What You Will Learn


Succession
The Law on Wills
How to Draft a Will
How to extract Probate/Letters of

Administration
Certificate of Release/Estate
Duty
The Law of Trusts
See Schedule for Lectures

References
Singapore Precedents & Forms: Wills, Trusts &

Administration (Vol. C)
Encyclopaedia of Forms and Precedents
(Butterworths)
Rules of Court, O 71
Supreme / Subordinate Court Practice Directions
Will Writing Richard Yeo
Probate & Administration in Singapore & Malaysia
G Raman

Main Sources of Law


Wills Act
Intestate Succession Act
Inheritance (Family Provision) Act
Probate and Administration Act
Estate Duty Act
Trustees Act
Central Provident Fund Act

* Not all applicable to Muslim Estates: Administration of


Muslim Law Act

Law of Succession

Succession
Transfer of property on death
Via Will
Intestacy
Most adults pass away without having made a will
Advantages of leaving a will

Intestacy
Partial
Made will, but failed to dispose of all property
Some dispositions fail
Total
Deceased never made a will
Made will but it is invalid lack of capacity etc.
Will revoked
Sole beneficiary pre-deceased testator
No disposition
Deceased did not name an executor
Executor named predeceased testator
Tacplas Property Services Pte Ltd v Lee Peter Michael (Administrator
for the estate of Lee Chong Miow, deceased) [2000] 1 SLR 637

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Total Intestacy
Estate vests in the Public Trustee
Property is distributed according to the Intestate

Succession Act (ISA), s. 7


Application of Act Did deceased die domiciled in
Singapore?
If yes, all property in Singapore will be distributed according to

ISA
If no, only immoveable property in Singapore will be. Movables?
s.4
Re Tan Soh Sim [1951] MLJ 21

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Intestate Succession Act, s. 7


Does Intestate leave
a surviving spouse?

Yes (rules 1 5).


Spouse may need to
share with descendants
or parents

No (rules 3 9).
Descendants,
then parents,
more remote relatives

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Persons entitled
Spouse must be spouse at the time of death. It does not

matter that divorce proceedings instituted Seaford v


Seifert [1968] P 53

Child must be legitimate child and can include adopted

child s. 3
Unborn child is still a child s. 6(a)
What about step-children?

Parents parents of the deceased


Brothers & sisters, aunts & uncles whole blood rank

before half blood Re Fenton [1994] 1 SLR 448 , Chng


Heng Tee & Anor v Estate & Trust Agencies Ltd [2009]
SGHC 241 & s. 6(b)

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Persons entitled
Descendants direct or lineal descendants or issue In

re Thurlow [1972] 1 Ch 379


Can this include illegitimate child?
Next of kin includes uncles and aunts but whole blood

ranks over remoter In re Lockwood [1958] 1 Ch 231

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Inheritance (Family Provision) Act (Cap.


138)
Sometimes dependants (spouse, or children not

capable of self-support) may have insufficient or no


provision under:
the Will
Intestacy laws

Inheritance (Family Provision) Act (Cap. 138)


Apply to court for reasonable provision from deceaseds

net estate

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Inheritance (Family Provision) Act (Cap.


138)
Who may apply?
Wife or husband
Daughter who has not married
Daughter with disability
Infant son
Son with disability

Polygamous marriage recognised Re Sehota [1978]

3 All ER 385

Son or daughter includes one conceived but not yet

born

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CPF Act & Intestacy


Money in CPF account do not form part of the estate and

pass by nomination
If no nomination made, property distributed by Public

Trustee according to Intestate Succession Act or


Administration of Muslim Law Act
s.25 CPF Act
Chai Choon Yong v CPF [2005] 2 SLR 594

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Insurance policies
Beneficiary also by nomination
Policy can be paid out to nominated person
Insurer should pay to named beneficiary
Estate is not entitled unless there is no named

beneficiary
Vaswani Roshini Anilkumar v Vaswani Lalchand
Challaram [2006] 2 SLR 257

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To Will or not to Will?


Dont talk about death
Beneficiaries flock to a

deathbed like bees to a


honeycomb
Complicated personal
circumstances

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Where theres a Will?


Avoid intestacy provisions
Specify gifts to beneficiaries
Appoint guardians of infant

children

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Pre-drafting considerations
Capacity to make will?
Age s. 4 Wills Act, subject to s. 27 WA
Of sound mind, memory and understanding?
Going to get married soon?
s. 13 WA
In debt? Do debts exceed assets?!
Made any other Wills?

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Testamentary Intention
Testator must understand the nature of his/her acts

and the consequences thereof


George Abraham Vadakathu v Jacob George
[2009] 3 SLR 631
Banks v Goodfellow (1870) LR 5 QB 549
Must understand
Effect of wishes being carried out
Extent of property being disposed

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Taking instructions
Know his/her family

structure and state of


relationships - may
affect drafting, advice

Take instructions from

testator directly, not


through intermediary
(esp. beneficiaries!)

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Basic Structure of Will


- Will of Tan Ah Kow
Identify the following clauses:
Commencement: testamentary intention,
identification
Revocation of previous Wills
Appointments of Executor/Trustee/Guardian
Dispositions of property
Residuary clause
Powers and directions to Executor / Trustee
Testimonium and Attestation

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Commencement clause
Identification of Testator

This is the last Will of Billy Ong


Include all names.
Declaration of Testamentary Intention

I declare this to be my last Will


What is the type of intention required?

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Revocation of previous wills


Purpose of revocation?
Competing Wills

SOP clause in Wills


But this is my first Will!!

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Revocation"
Relevance of Prior Will
On why change(s) are desired
In case some clauses are to be retained
In case of later Will not being exhaustive
In case of later Will being invalid

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Revocation
Methods of revocation s. 15 Wills Act
s. 13 Marriage

Another Will / codicil so stating


Written declaration of intention to revoke -executed

like a Will

Physical destruction

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Revocation of Wills by Marriage


Marriage s. 13 - automatic revocation. Intention of

parties inconsequential
Specific marriage - No revocation if Will made in

contemplation of a specific marriage which takes place


e.g. named fiance / fiancee
- Mere declaration this Will is made in contemplation of

marriage not effective to save will.


- Beneficiary must be named to my fianc X or ..to
my future wife Y

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Revocation of Wills by
Destruction
Destruction s. 15(d)

- burning, tearing,
destroying
- Intention to revoke
Elements required :
Act of destruction
Intention to revoke
e.g. Failure to revoke striking through will
with pen

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Next Lecture
Wills
Main Clauses
Execution