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Making a Will
 
 

What is a Will

A person makes a Will to provide for the administration and distribution of what he owns ('his estate') among his beneficiaries after his death. This person is called 'the testator'. 'Beneficiaries' are those who inherit or benefit under the Will. The 'Executor' is the person nominated by the testator to administer and distribute his estate upon his death. Usually, the same person is appointed as executor and trustee (a person who has the power to hold the estate of the deceased on the death of the deceased).

If there are beneficiaries who are minors (persons under the age of 21 years) named in your Will, it will be preferable to have at least two Executors/Trustees who would be able to administer or hold any assets or invest or use any money for the benefit of the minors.

Do You Need a Lawyer

If you are 21 years and of sound mind, you may make your own Will and change it at any time during your life without consulting a lawyer. But the risk is that your home-made Will may be ineffective or invalid, causing your beneficiaries to suffer unnecessary expense. It is therefore in your interest to consult a lawyer who can advise you and draft your Will for you according to law. However, if you are a soldier in active military service, or a mariner or a seaman at sea, you may make a Will even though you are under 21 years of age.

What You Can Include in a Will

You should state the person(s) or organisation(s) ('Beneficiaries') to whom you wish to give away your property and assets. For example, you may give away your house, car, shares, insurance policies, bank accounts, cash and jewellery to family members, friends or to charities.

Money in Your Central Provident Fund ('CPF')

If you have made a nomination under the CPF Act, your nominee shall be entitled to the funds in your CPF account regardless of what is stated in your Will. If you have not made a nomination, your funds will be distributed under the law in accordance with the Intestate Succession Act. If you get married after making a nomination, your nomination made before marriage is automatically cancelled, unless you say that it was made in contemplation of marriage. Therefore, you ought to make a new nomination after marrying.

Witness Your Will

This is an important stage of the process. The signing of your Will must be witnessed by two persons and they must both be present at the same time. Witnesses must not be beneficiaries under the Will. Neither can they be the husband or wife of any of the beneficiaries.

Changing Your Will

Never attempt to change your Will by crossing parts out or adding words in or by attaching anything to it. If you do so your Will may become ineffective or invalid. If you wish to change your Will, either make a fresh Will or prepare a Supplemental Will (a 'Codicil').

Reviewing Your Will

If you marry or remarry, your Will is nullified or cancelled unless the Will was made in contemplation of your marriage.

You should review your Will if any of the following happens:

  • a. if you change your name or anyone mentioned in the Will changes his name;
  • b. if an executor or trustee dies or becomes incapable of carrying out his duties owing to ill-health;
  • c. if a beneficiary dies;
  • d. if you subsequently sell or part with any property mentioned in the Will;
  • e. if there is any significant change in circumstances, for example, when you acquire property or assets which have not been mentioned in your Will.

It is advisable to review your Will regularly.

Making Known Your Will

Although a Will is a private document, it is important that your family and especially your executors know that you have a Will and where you have kept it. If you wish, your lawyer will look after it for you. You should then give your executors your lawyer's name and address. You may also register and deposit a copy of your Will at the Will Registry upon payment of a fee.

Administering Your Estate

Your Will takes effect upon your death. Your executors would have to apply to Court for a Grant of Probate. The Court will only issue the Grant after it is satisfied that all procedural requirements are met. Estate Duty clearance will be required before a Grant is obtained, (before the abolition of Estate Duty in 2008).

However, the executors have the power by virtue of your Will to act even before the Grant is issued. For example, your executors may pay or release debts and transfer property or assets. But it is necessary to obtain the approval of the Commissioner for Estate Duty, before the abolition of Estate Duty, when dealing with landed property or major assets. In this case, it is also necessary to get a copy of the Grant of Probate.

Once the Grant of Probate is issued, the Will becomes a public document. The original Will is retained by the Court. The executors will be given a copy of the Will together with the Grant. All your property and assets will then pass to your executors, who will have the responsibility of administering and distributing the estate according to the instructions in your Will.

If You Do Not Make a Will

If you pass away without making a Will, your assets will be distributed according to the rules of intestacy as laid down in the Intestate Succession Act. Your lawyer can advise you about these rules and how they apply to you. If you die without making a Will, your estate may be distributed to persons to whom you do not intend to give anything.

Also, you cannot choose the people who will look after your estate. They are called "administrators" instead of executors although they will have the same responsibilities. They have to apply to Court for "Letters of Administration" instead of the Grant of Probate and the procedure is generally more complicated and lengthy. For example, the administrators will have to provide two guarantors unless they get approval from the Court not to have such guarantors.

Therefore, if you want to provide especially for your family members, friends or a charity after your death, you should consider making a Will as it will be easier and more convenient.

Cost

If you are concerned about the cost of making a Will discuss this with your Lawyer. You can ask your lawyer for an estimate of the costs involved before appointing him.

Syariah Law

Some of the points mentioned above do not apply to Muslims. Under Section 115(1) of the Administration of Muslim Law Act, the beneficiaries must apply to the President of the Syariah Court for an Inheritance Certificate to establish the share of each beneficiary. Muslims can only dispose of or give away 1/3 of their estate to persons who are not already entitled under the Inheritance Certificate mentioned above.

This article is reproduced with permission from The Law Society of Singapore.

For more information, please visit http://www.lawsociety.org.sg.

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