1TRUSTS, WILLS AND PROBATE Lecture 1 Intro and Succession Basic Structure of a Will 2 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 3 Assessment Project 1 – Drafting a Will Project 2 - Probate Class Participation Exam TOTAL - 20% - 20% - 10% - 50% 100% 4 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 . C) Encyclopaedia of Forms and Precedents (Butterworths) Rules of Court.5 References • Singapore Precedents & Forms: Wills. Trusts & • • • • • Administration (Vol. O 71 Supreme / Subordinate Court Practice Directions “Will Writing” – Richard Yeo “Probate & Administration in Singapore & Malaysia” – G Raman . 6 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 . 7 Law of Succession . 8 Succession • Transfer of property on death • Via Will • Intestacy • Most adults pass away without having made a will • Advantages of leaving a will . 9 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. deceased) [2000] 1 SLR 637 . • 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. all property in Singapore will be distributed according to ISA • If “no”. s.4 • Re Tan Soh Sim [1951] MLJ 21 . only immoveable property in Singapore will be. 7 • Application of Act – Did deceased die domiciled in Singapore? • If “yes”. Movables? – s.10 Total Intestacy • Estate vests in the Public Trustee • Property is distributed according to the Intestate Succession Act (“ISA”). 11 Intestate Succession Act. Descendants. s. more remote relatives . then parents. Spouse may need to share with descendants or parents No (rules 3 – 9). 7 Does Intestate leave a surviving spouse? Yes (rules 1 – 5). 12 Persons entitled • Spouse – must be spouse at the time of death. 6(a) • What about step-children? • Parents – parents of the deceased • Brothers & sisters. Chng Heng Tee & Anor v Estate & Trust Agencies Ltd [2009] SGHC 241 & s. aunts & uncles – whole blood rank before half blood – Re Fenton [1994] 1 SLR 448 . 6(b) . 3 • Unborn child is still a child – s. 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. 13 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 . 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 deceased’s net estate . 138) • Sometimes dependants (spouse.14 Inheritance (Family Provision) Act (Cap. 15 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 . 25 CPF Act • Chai Choon Yong v CPF [2005] 2 SLR 594 .16 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. 17 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 . 18 “To Will or not to Will?” • Don’t talk about death • Beneficiaries flock to a deathbed like bees to a honeycomb • Complicated personal circumstances . 19 “Where there’s a Will?” • Avoid intestacy provisions • Specify gifts to beneficiaries • Appoint guardians of infant children . 27 WA • Of sound mind. 4 Wills Act. 13 WA • In debt? Do debts exceed assets?! • Made any other Wills? . subject to s. memory and understanding? • Going to get married soon? • s.20 Pre-drafting considerations • Capacity to make will? • Age – s. 21 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 . advice • Take instructions from testator directly. not through intermediary (esp.22 Taking instructions • Know his/her family structure and state of relationships .may affect drafting. beneficiaries!) . identification • Revocation of previous Wills • Appointments of Executor/Trustee/Guardian • Dispositions of property • Residuary clause • Powers and directions to Executor / Trustee • Testimonium and Attestation .Will of Tan Ah Kow Identify the following clauses: • Commencement: testamentary intention.23 Basic Structure of Will . 24 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? . 25 Revocation of previous wills • Purpose of revocation? • Competing Wills • SOP clause in Wills • “But this is my first Will!!” . 26 “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 . 13 Marriage • Another Will / codicil so stating • Written declaration of intention to revoke -executed like a Will • Physical destruction .27 Revocation Methods of revocation – s. 15 Wills Act • s. g..28 Revocation of Wills by Marriage • Marriage – s. .automatic revocation. 13 .Mere declaration “this Will is made in contemplation of marriage “ not effective to save will. named fiance / fiancee . Intention of parties inconsequential • Specific marriage .to my future wife Y” .No revocation if Will made in contemplation of a specific marriage which takes place e.Beneficiary must be named “…to my fiancé X” or “…. 15(d) . Failure to revoke striking through will with pen . tearing.Intention to revoke • Elements required : • Act of destruction • Intention to revoke e.29 Revocation of Wills by Destruction • Destruction – s.burning.g. destroying . 30 Next Lecture… • Wills • Main Clauses • Execution .