Why You Should Make a Will

Author: Patrick Tan and Keyan Choo

What is a Will?

  1. A Will, or a last Will and testament, is a document that states the testator’s final wishes in relation to how he would like for his assets to be distributed.
  1. This article aims to set out the advantages of making a Will.

Freedom of distribution

  1. The most important element of a Will is its function of allowing freedom of distribution. It is trite that a Will empowers the testator to direct specifically whom he wishes to give his assets to and in what proportion or shares. The corollary of which is the assurance that the testator’s assets will be distributed to his loved ones in a manner in which he desires.
  1. This is especially important in situations where the testator has children or other family who are financially-dependant on him, thereby necessitating monies to be set aside for their use on the testator’s demise.
  1. Without a Will, the deceased’s estate may be distributed to persons to whom he does not intend to give anything to, because the law of intestacy[1] decides which of his next of kin can receive his assets and the proportion that they will inherit. In contrast, persons or organisations to whom the deceased wishes to bequeath his assets to, such as good friends, his favourite charities or religious institutions, may not stand to inherit any part of his estate.
  1. Therefore, if the testator wishes to provide specifically for certain people, whether family members, friends or even a charity on his demise, he is advised to make a Will.
  1. Be that as it may, freedom of distribution does not apply to Muslims who are subjected to the Administration of Muslim Law Act (Chapter 3). The distribution of a Muslim’s estate has to follow Muslim law[2]. To determine the distribution of your estate, the beneficiaries must apply to the Syariah Court for an Inheritance Certificate[3] to establish the share of each beneficiary. Muslims can only distribute freely 1/3 of their estate to persons who are not already entitled under the Inheritance Certificate[4].

Freedom to select executor

  1. Another significant benefit of executing a Will would be the testator’s ability to choose his executors and trustees. A trustee and executor can be appointed in a Will to carry out necessary formalities and to distribute the estate.
  1. As the executor plays such a crucial role in the distribution of the estate, a testator would want to appoint people whom he trusts so that he can rely on them to carry out his wishes.
  1. In contrast, if the deceased did not leave a Will, his next of kin will generally be the one appointed to execute his estate. This scenario is especially problematic in families where members are not on good terms, as the appointed administrator may not distribute the assets to rightful beneficiaries who he may be estranged from.
  1. A common problem with the lack of a selected executor would be the attendant grappling between family members with the same priority to be appointed administrator. The most common scenario would be between siblings vying to be appointed administrator of their deceased parents’ estate. Again, there could be a “power-struggle” between family members as most would invariably prefer to be the one appointed so as to ensure that their rights as beneficiaries are protected.
  1. Finally, the worst-case scenario would be for the appointed administrator to act with a flagrant disregard of his duties. This refers to cases where the administrator does not adhere to the distribution provided for under the law of intestacy and administer the estate as he pleases.

Avoidance of conflict and confusion

  1. Disputes over the distribution of estates are prevalent in Singapore. Some of Singapore’s richest and most powerful families have been embroiled in litigation over estates worth millions of dollars[5], leaving the family wealth decimated and the family divided. This is exacerbated in cases where the deceased did not leave a Will, leaving the Courts to decipher his true intention.
  1. These family conflict can be simply avoided by a testator making his intentions clear in a Will. As mentioned above, the testator is at liberty to distribute his assets as he wishes. There should be no conflict or confusion as the executor’s role is merely to distribute the estate in accordance with the testator’s directions in the Will. The executor has no right of adjudication on any perceived “fairness” of distribution.

Ease of administering the estate

  1. Whoever the testator appoints as 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.
  1. Once the Grant of Probate is issued, all the testator’s property and assets will then pass to his executors, who will have the responsibility of administering and distributing the estate according to the instructions in the Will.
  1. If the deceased did not leave a Will, his family would have to apply to Court for a Grant of Letters of Administration. The process is generally more complicated and expensive, as the impending administrator has to justify to the Court that he should be the one empowered to deal with the deceased’s estate. This means that if the deceased did not leave a Will, his family may have to overcome more hurdles before they can have access to and receive his assets.

Conclusion

  1. It is common to hear the public in Singapore be dismissive of the necessity of making a Will by reason of a lack of assets to Will. However, this may be an over-simplification of the reality. Due to the success of the HDB scheme, a large proportion of the population are homeowners. Generally, a flat alone would be valued at hundreds of thousands. Conversely, the cost of making a Will is unlikely to be prohibitive.
  1. Therefore, it is wholly justified and in fact important to make a Will, to ensure that a testator’s estate is distributed to his satisfaction in future.

[1] Intestate Succession Act (Chapter 146)

[2] Section 112 Administration of Muslim Law Act (Chapter 3)

[3] Section 115(1) of the Administration of Muslim Law Act

[4] Section 111 of the Administration of Muslim Law Act

[5] https://www.straitstimes.com/singapore/from-the-straits-times-archives-family-feuds-over-fortunes-and-business-empires

Written by: Patrick Tan and Keyan Choo

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