Importance of Estate Planning through Preparing a Will
The common misconception by many is that wills are only for the rich or the old. This is not so, as tragedy can strike at the most unexpected of times, and having a will prepared could save your loved ones a great deal of heartache. Consider the late Heath Ledger and Paul Walker who died without properly updating their wills; several important members of their family were left out of their inheritance, turning what was already a tragic situation for these bereaved families into an even more stressful one.
Preparing a will is an intimate and sensitive matter for anyone and may potentially have significant financial impact, as well as emotional impact, on family members and loved ones who survive you. However, it is also important to stress that it is through a validly executed will where you can successfully safeguard the future and interests of your family members and loved ones.
When a person dies leaving an executed and valid will, he or she is said to have died “testate” and his or her assets will be distributed in accordance with the provisions in the will. However, when a person dies without a valid will, he or she would have died “intestate” and thus the Intestate Succession Act (Cap. 146) of the Singapore will dictate the distribution of his or her assets. A person dying intestate would have effectively abandoned his or her right to decide on how the assets are to be distributed, leaving the distribution of the inheritance at the mercy of the statute.
The main disadvantage of this is that sometimes, assets could be given to beneficiaries whom the deceased had not intended or, worse, leave loved ones out of crucial parts of your inheritance. If you have control of so many parts of your life, it cannot be that you wish to leave this vital part unattended to.
Drafting a Will
Therefore, to avoid consequences of intestacy, it is important to carefully plan and apply thought in the drafting of a will. Once the will maker, legally called the “Testator” (if male) or “Testatrix” (if female), has passed on, there is usually little that can be done to rectify any errors or injustices arising from a badly-considered or badly drafted will. At the same time, the Wills Act (Cap 352) of Singapore prescribes that certain circumstances must be in place for a will to be considered valid under Singapore Law.
There are certain basic requirements to a valid will in Singapore:
- The Testator or Testatrix must be above the age of twenty-one (21); and must have the requisite mental capacity to make the will;
- The will must be made in writing, and must be signed by the Testator or Testatrix in the presence of two (2) witnesses, who must witness the signing of the will in the presence of each other; and
- The witnesses to the execution of the will can be the Testatrix’s lawyer, friend or relative as long as the witness is not a beneficiary under the will or a spouse of such a beneficiary.
To be practically and administratively functional, a will must also contain:
- Clear identification of the Testator or Testatrix. In this regard if a Testator or Testatrix is known by several aliases, all these aliases should also be listed out, in full, in the Will;
- An express revocation of the Testator or Testatrix’s previous wills to ensure that there can be no interference from them;
- The appointment of at least one (1) executor/trustee to carry out the wishes of the Testator or Testatrix vis-à-vis their assets upon the Testator or Testatrix’s death. If there are any beneficiaries of the Testator or Testatrix who are also minors, the Testatrix should appoint at least two (2) executors/trustees to care for any property given to the dependents as beneficiaries;
- How the assets of the Testator or Testatrix are to be distributed upon her death, and to whom;
- A declaration by the Testator or Testatrix as to the making of and execution of the will, which is also known as the testimonium and attestation portion of the Will; and
- In the case where there are minor children benefiting under the will, it is also customary for a guardian or guardians to be named under the Will to be in charge of the care of the children upon the Testator or Testatrix’s death. In such instances the name, principal address and nationality of the guardian(s), and his/her/their relationship to the Testator or Testatrix must also be provided.
CPF Savings are NOT affected under a Will
It is also important to note that as a CPF member, a Testator or Testatrix must state his or her intended beneficiary(ies) by making a valid nomination with the CPF Board and in accordance with the Central Provident Fund Act (Cap. 36). If there is no valid nomination, the CPF savings will not be distributed in accordance with the Testator’s or Testatrix’s wishes under the will but rather, the CPF savings will be distributed by the Intestate Succession Act (Cap. 146) of the Republic of Singapore.
In the event that the Testator or Testatrix has named the beneficiary(ies) in their insurance policy(ies) prior to 1 September 2009 and he or she still intends to give the policy(ies) to the named beneficiary(ies), the Testator or Testatrix may simply indicate his or her intention in a Will.
However, if the Testator or Testatrix has no intention to the give the policy(ies) to the named beneficiary(ies), he or she will need to make a request to the insurance company to change the beneficiary to “Estate” and the policy proceeds will be distributed by way of a Will.
However, if the Testator or Testatrix has named his or her spouse and/or children as beneficiaries prior to 1 September 2009, the insurance policy is known as a Section 73 policy (i.e. Section 73 of the Conveyancing and Law of Property Act (Cap. 61)) and the Testator or Testatrix will need to obtain the consent from the beneficiaries in order to change the beneficiary to “Estate“.
For policies without a beneficiary named in the policy, the Testator or Testatrix can include the policy proceeds in the will and distribute assets accordingly. With effect from 1 September 2009, owners of Life policies and Accident & Health policies can nominate their beneficiaries via Sections 49M or 49L nominations pursuant to the Insurance Act (Cap. 142).
About the Author
Mr. Samuel Seow is the founder and Managing Director of Samuel Seow Law Corporation and is also Foreign Legal Advisor to Seow & Associates, its associated legal practice founded in Malaysia.
Samuel’s expertise is in the field of intellectual property law and general commercial and corporate law, and he has extensive experience in dealing with a wide range of transactions, with a special focus on the application of these laws to the entertainment, arts and media industries.
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Mr. Samuel Seow
Samuel Seow Law Corporation