Wills, Probate and administration: 1 and 2

NB: The following acronyms: PAA = Probate and Administration Act, EDA = Estate Duty Act, Intestate Succession Act = ISA, Inheritance (Family Provisions) Act = I(FP)A

Prelim observations- will contains directions on how testator, after death, will distrib his assets after death- prereq of making a will – 1. as sol when interviewing client – to probe him on personal matters ie his likes and dislikes, whom he

chooses to give benefits to, whom he x like to leave assets to after deatha. In specie to beneficiaries, or distribution of whole of assets in fractional shares?

2. law req person to leave behind suff money and assets for dependents (inheritance family provision act)

spouse and children of deceased

If testator is married, he has duty to provide for his dependants If married, please advise that he has a certain duty to provide for his dependants under the Inheritance

(Family Provision) Act 1966 If not, the will can be challenged. What is “reasonable”? He does not have to balance the amounts involved between his children.

S 3 Inheritance (Family Provision) Act(1) Where, after the commencement of this Act, a person dies domiciled in Singapore leaving – (a) a wife or husband;(b) a daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself;(c) an infant son; or(d) a son who is, by reason of some mental or physical disability, incapable of maintaining himself,then, if the court on application by or on behalf of any such wife, husband, daughter or son as aforesaid (referred to in this Act as a dependant of the deceased) is of opinion that the disposition of the deceased’s estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable provision for the maintenance of that dependant, the court may order that such reasonable provision as the court thinks fit shall, subject to such conditions or restrictions, if any, as the court may impose, be made out of the deceased’s net estate for the maintenance of that dependant…

If he does not provide for dependants, dependant can easily challenge the will ‘Reasonable provision’: this has to be discussed with the testator Explain in the will why testator is minded to leave only nominal amount behind for any of his

dependants, if he so chooses: e.g. wife already reasonably provided for by way of fixed interest deposits this will make the will almost impossible to challenge

Drafting Tip

Why the testator is minded to only leave a nominal award for his family?

1st example

- Gifts given to son and/or daughters during his lifetime. He knows that he has provided so much for his children.

2nd example

- Wife/ husband addicted to gambling. He/she has got their own income.- Of course, still have to explain why that nominal amount was left (perhaps they’ve got income from a fixed deposit account or collecting rent from their property).- Furthermore, she/he has not cured him/herself from the gambling addiction.

o spouse – no gender specification – o need to say in will why spouse is not leaving money for spouse

3. also to ask client whether made CPF nominations of funds in CPF, if none made, the money in CPF acct is distributable under intestate sucession act and therefore provisions of that act will apply => whatever is CPF fund not nominated will be divided to spouse and half to children in eq shares

if not nominated, estate falls into intestacy EVEN if there is a will even if will sets out where money in CPF will go to section 25 CPF act very specific – if no nomination made, CPF funds will be distrib

according to ISA sends all monies to public truastee office who will distrib money in accordance with the

act note: marriage revokes CPF nominations

prior to 1980 amendment, any nomination will hold even if man married and had diff wife

by amendment, marriage will revoke the nomination (gets rid of social prob of pple leaving behind money for creditors)

can still choose who u want to nominate however more bellow

Under CPF Act, have to nominate beneficiary for CPF funds and follow procedure set out therein – testator may be under the impression that he can will away his CPF assets

CPF Act Moneys payable on death of member25. —(1) Any member of the Fund may by a memorandum executed in the prescribed manner nominate a person or persons to receive in his or their own right such portions of the amount payable on his death out of the Fund under section 20 (1) or of any shares designated under section 26 (1) as the memorandum shall indicate.

[31/95](2)     Where, at the time of the death of a member of the Fund, no person has been nominated by him under subsection (1), the total amount payable on his death out of the Fund shall be paid to the Public Trustee for disposal in accordance with — (a) the Intestate Succession Act (Cap. 146), if the member is not a Muslim at the time of his death; or (b) section 112 of the Administration of Muslim Law Act (Cap. 3), if the member is a Muslim at the time of his death. (3) If any person nominated (other than a widow) is below the age of 18 years at the time of payment of the amount payable out of the Fund, his portion of the amount payable shall similarly be paid to the Public Trustee for the benefit of the nominated person. (4) The receipt of a person or persons nominated under subsection (1) or of the Public Trustee shall be a discharge to the Board for such portions of the moneys payable out of the Fund on the death of a member as are payable to the person or persons or the Public Trustee under subsection (2) or (3). (5) Any nomination made by a member of the Fund under subsection (1) shall be revoked by his marriage, whether the marriage was contracted before or after 15th May 1980. Withdrawals20. —(1) Upon an application for the withdrawal of the sum of money standing to the credit of a member of the Fund by a person entitled thereto under section 15, the Board may authorise the payment to the applicant of such sum as the member is entitled to withdraw from the Fund and any interest calculated in accordance with section 12 (2) up to the date of the authorisation or, if the applicant is a nominee appointed in accordance with section 25 (1), such portion of the sum as he is nominated to receive. (2) When any contributions are due to be paid for a member of the Fund in respect of any period ending not later than the last day of the month next following the date on which the withdrawal of the sum of money standing to his credit in the Fund is authorised and the contributions are not paid to the Fund until after the date of authorisation, those contributions may in the discretion of the Board be treated as if they had been included in the amount standing to the credit of the member at the date of authorisation of withdrawal and paid to the applicant accordingly. (3) All applications for withdrawal shall be supported by such evidence as may be prescribed and by such further evidence as the Board may reasonably requireContributions to be paid into Fund12. —(1) All sums recovered or collected on account of contributions to the Fund under this Act shall be paid into or carried to the Fund in such manner as may be prescribed. (2) The Board shall cause to be credited to each member of the Fund — (a) the amount of every contribution paid to the Fund for him; and (b) interest at the rate declared under section 6 (4) at such intervals as the Board may prescribe and on the amount standing to his credit in the Fund at such time as the Board may determine.

(6)(4) Interest shall be payable on contributions to the Fund at such rate per annum, not being less than 2 1/2%, as the Board may from time to time declare except that the Board shall not declare a rate of interest exceeding 2 1/2% per annum except with the approval of the Minister for Finance.

Power of Board to distribute and dispose of certain shares on death of member26. —(1) Upon the death of a member of the Fund who has executed a memorandum under section 25 (1), such shares or class of shares in any approved corporation as the Minister may designate belonging to the member at the time of his death which were purchased from moneys withdrawn under this Act shall, notwithstanding any written or other law, vest in the Board and shall not form part of the estate of the deceased member.

[31/95](2) The Board shall, as soon as practicable and subject to such terms and conditions as the Board may impose, transfer the shares vested in the Board under subsection (1) to the person or persons nominated by the deceased member to receive in his or their own right such portions of the shares as indicated in the memorandum executed under section 25 (1) and the receipt of such person or persons shall be a discharge to the Board in respect of the shares.

[31/95](3) Where the Board is for any reason not able to transfer any shares to a person who is entitled to receive them under subsection (2), the Board shall sell those shares in such manner and at such time as may be prescribed.

[31/95](4) Where the Board has sold any shares under subsection (3), the Board shall as soon as practicable pay the proceeds of sale of the shares to the person referred to in that subsection, and the receipt by such person of those proceeds shall be a discharge to the Board in respect of the shares.

[31/95](5) In this section — "approved corporation" means any corporation approved by the Minister; "corporation" means — (a) any company which is incorporated in Singapore and wholly or partly owned by the Government and includes any subsidiary of such a company which is incorporated in Singapore; and (b) any subsidiary of a statutory board which is incorporated in Singapore; "shares" includes warrants, transferable subscription rights, options to subscribe for shares, convertibles and other security interests arising from or accruing or attaching to the shares.

[31/95](6) A memorandum executed under section 25 (1) by any member of the Fund shall, if valid immediately before 1st January 1996, be deemed to apply to any shares designated under subsection (1).

[31/95](7) This section shall not apply to any member of the Fund who died before 1st January 1996.

Note CPF (Nomination) Rules: argument is that if strict provisions for nominations not followed, CPF funds still fall into intestacy.

CPF contributions

- Sections 25,26,28 of CPF act - See above for provisions- One of the first question to ask concerning a deceased’s estate is: What was the balance in his CPF

account?- This because such CPF funds may pass independently of the deceased’s will (if he made one) or under

the ISA (if he died intestate), if he made a valid nomination under the CPF Rules.- If he had funds in his CPF account, did he nominate anyone to receive the funds on his death?- Under the CPF Act, cannot nominate beneficiary- Can we will away CPF money in will??

- Section 25(2) of the CPF Act states that if there is no specific nomination, the CPF money falls into intestacy. The Section is explicit.

Section 25(2) of the CPF Act

Moneys payable on death of member25. —(2) If, at the time of the death of a member of the Fund, there is no person nominated under subsection (1), the total amount payable out of the Fund shall be paid to the Public Trustee for disposal in accordance with any written law for the time being in force.

- The CPF (Nomination) Rules 1996 prescribes a form of nomination, which is not unlike a will, which may be revoked by marriage – section 28. However, it is to be noted that the monies payable out of the Fund do not form part of the estate of a declared member.

- Saniah bte ali v Abdullah bin ali (1990) 3 MLJ 135Facts: The deceased had, during his lifetime, nominated only the first plaintiff, who was the deceased`s stepsister, to receive in her own right the entire amount payable on his death out of the Central Provident Fund (the Fund). On the deceased dying intestate, the CPF paid out the deceased`s moneys to the first plaintiff. Under Muslim law, the defendant, who was the deceased`s brother, was entitled to the whole estate of the deceased. The issue that arose was whether the first plaintiff was entitled to retain the entire amount of the deceased`s CPF moneys. It was argued that by virtue of s 112(1) of the Administration of Muslim Law Act (AML Act), the estate of any Muslim dying intestate was to be distributed in accordance with Muslim law. Holdings: Held , finding in favour of the first plaintiff: (1).The court was unable to accept that by making a nomination under s 24 of the Central Provident Fund Act (Cap 36) (CPF Act), a member of the Fund created a trust of his money in the Fund. The section did not expressly or impliedly enable a member to create a trust of his moneys in the Fund. When a trust was created, it was not revocable by the settlor, except with the consent of the beneficiary therefor. A nomination made by a member under the CPF Act could be revoked or varied at any time during the lifetime of the member. The trust created by virtue of s 23(3) of the CPF Act was not created at the time the nomination was made by the member. The trust was created on the death of the member and upon payment being made out of the Fund. (2).The general scheme of the CPF Act was to treat a member`s moneys in the Fund as a species of property separate and distinct from his other property. It was not subject to any attachment, sequestration, etc. On his death, it did not form part of his estate. (3).Section 24 was intended to protect the CPF Board from the hazards of being embroiled in any dispute as to who was entitled to receive the member`s money in the Fund. Once the CPF Board had paid the person nominated or the Public Trustee, if there was no person nominated, then the Board was discharged. (4).Section 23(3) was clear: the moneys payable out of the Fund on the death of the member were specifically excluded from the estate of the deceased. There was therefore no conflict between s 23(3) of the CPF Act and s 112(1) of the AML Act. (5).The fatwa or ruling of the Majlis Ugama Islam, Singapura that the CPF nominee was only to receive the money as a representative and was not entitled to anything was not binding on the court. What was before the court was not really a point of Muslim law. Accordingly, the first plaintiff was entitled to retain the moneys.

- Therefore, we have to ascertain whether the testator has nominated his CPF form.

4. Insurance proceeds and other assets devolving indep of intestacy/deceased’s will

- Like CPF funds, proceeds of insurance polcies may devolve on benef nominated in policy- Jt property like bank accts, jt tenancies etc may pass to surviving jt owner automatically on death of ther

jt owner- Even toug value of assets may have to be aggregated with deceased’s estate for estate duty purposes,

may pass indep of intestacy/ will but remain subj of IFPA claim. Assets where decesd had not benef interest x form part of aggregate estaqte but fomr sep estate or estates

5. muslim clients – duty to impress on them tt muslim cannot will away what he owns as he wishes in all other respects, wills act will apply except for s3 Wills Act s3 – person may give away assets as he chooses – why is muslim denied this freedom?

Because Koran prov tt muslim shal only distrib assets as stated in Koran, so cannot depart form the injunctions set out there.

Koran states that, simply, person to give his assets after dath in accoradance with teaching of Koran. Practically, muslim can only will away 1/3 of assets. Remaining 2/3 to be distributed in accordance with what Koran says. The 2/3 will be given to wife and children of deceased.

This must follow formula set out in Koran.o 1/8 – wifeo remaining 7/8 – children in shares where male son gets double that of

female o discriminatory provision? – holy book. Women protected lot back in

prophet mohamed’s time

1/3 of estate – free to dispose of it. But with this rider, muslim cannot give more to the Islamic heirs by giving that 1/3 which he is free to dispose of to them ie canot give daughters more than supposed to

ie – I appt so and so as my executor. I give my estate in accordance with syriah law. with this, entire estate gets distributed in accordance with syriah law as set out above.

What if muslim name but converted to Christianity? – Islamic law still applicable. He has not changed his name to Christian name. even if he ate non halal food, did not go to mosques etc

He must have taken steps to state in clear categorical terms tt no longer a muslim

Make a statutory declaration Also go to deed poll – change name Also send to MUIS (muslim relig council), ask for receipt acknowlegmetn of

deed declaration Then free of oblig under islam law as to how to distrib assets

6. Advising the testator on legal matters

1. Marriage

If testator subsequently marries, this revokes the will

S 13 Wills ActEvery will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, executor or administrator or the person entitled under the Intestate Succession Act.

Marriage revokes a will – s.13 Wills Act (WA). But if will is made in anticipation of marriage, subsequent marriage does not revoke the will So just need to mention in will, for e.g., that “I intend to be married in 3 months”

2. Blind or illiterate testators

Blind testators Either have him mark at the foot of the will; or Have friend or family member sign on his behalf or on his instructions

Note: Important to record what was done in the will itself by making endorsement or note next to the

signature to the effect that ‘the contents of the will were explained to the testator, which he understood, and he directed that X sign on his behalf.’

Illiterate testators If signature on the will is in a language other than English, the assumption is that the testator does not

understand English Therefore must add note that testator read and understood contents and chose to sign in a language other

than English Note O 71, 72 on non-contentious and contentious probate proceedings respectively.

How about when the testator is blind or illiterate? How to sign?

Blind

- Leave a mark wherever he is told at the end of the will- Have a brother/sis/father sign it on his behalf and on his instruction- It is important to record what was done IN the will itself.

Illiterate

- Some testator cannot speak English but they can understand Mandarin (or some dialect)- Sometimes, they can understand English but they sign in Chinese!- If the will is signed in Chinese, please a note that the testator CHOOSES to write/sign in Chinese.

- It will save a great deal of headache when signing or when it comes to having proved the will.- But the discretion is entirely theirs.- If there is a query, must submit affidavit of the attesting witness. - Those who don’t understand eng and don’t sign in eng – contents must be explained.

o Blind man? Must be endorsed in will that contents of will were read over and expained to testator before he placed his mark on the will.

o Paralysed and cant lift hand to sign? Get him to direct in will that at his request, will was signed on his behalf by his good friend eg Tay, on the durat as instructed by the testator.

The Wills Act: preparation of wills

Drafting a will: formalities and requirements Singapore Wills Act is modelled on English Wills Act of 1837 2 major differences of practical importance

1. Proviso to our s 6(2) as to position of testator’s signature on the will

Mode of execution.6. —(1) No will shall be valid unless it is in writing and executed in the manner mentioned in subsection (2). (2) Every will shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction, and the signature shall be made or acknowledged by the testator as the signature to his will or codicil in the presence of two or more witnesses present at the same time, and those witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. (3) Every will shall, as far only as regards the position of the signature of the testator, or of the person signing for him as mentioned in subsection (2), be deemed to be valid under this section if the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will; and no such will shall be affected by the circumstance —

21/38.(a) that the signature shall not follow or be immediately after the foot or end of the will; (b) that a blank space shall intervene between the concluding word of the will and the signature; (c) that the signature shall be placed among the words of the testimonium clause or of the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses; (d) that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature; or (e) that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature. (4) The enumeration of the circumstances under subsection (3) shall not restrict the generality of that subsection; but no signature under this Act shall be operative to give effect to any disposition or direction which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made

2. Proviso to our s 13 which extends rules on wills made in contemplation of marriage to polygamous marriages

Will to be revoked by marriage except in certain cases.13. —(1) Every will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, executor or administrator or the person entitled under the Intestate Succession Act. (2) Notwithstanding subsection (1), where a will made on or after 29th August 1938 is expressed to be made in contemplation of a marriage, the will shall not be revoked by the solemnization of the marriage contemplated; and this subsection shall apply notwithstanding that the marriage contemplated may be the first, second or subsequent marriage of a person lawfully practising polygamy.

3. Note that Singapore courts do not have the power to rectify clerical errors in a will- absence in sg of court’s power to rectify clerical errors in will – given to eng courts by admin of justice

act 1982 – so care must be exercised

Essential features of a valid will

a) Intention to make will is paramount.a. mental soundness; medical exam if nec

i. have conversation with person whom u are making will forii. conduct conversation in privacy of own room or conerence room in firm

iii. pricacy impt – he may be accompanied by siblings/family, he may be advanced in yrs, must satisfy urself tt he is rational and cogent. Ask him few qns. If he answers intelligently then ok.

iv. Wher he is terminally ill – asks you to go and take instructions/ take instructions from family first then double check – NO! part of job, u must get instructions directly. Converse with him.

1. where client paralysed and not able to converse – is movement of head etc acceptable as instructiosn?

2. you need to satisfy urself whether testator patient with illness has been influenced inany way. Must clear this worry, chat.

v. In old days, medical staff wld sign as witnesses (essential reqt) nowadays strict instructions not to do so,. So take private GP, pay him, GP will then interview nad sign as attesting witness tt testator executing will freely

vi. Sometimes may have to draft a will for a terminally-ill or very old clientvii. You must satisfy yourself that the person before you understands what he is

about to doviii. Interview the testator so that you can convince yourself that he is competent to

make the willix. Should point out to client any lack of wisdom in any proposed course of action,

and keep careful contemporary memorandum of what you advisex. If you can obtain a medical certificate and/or get the doctor to be witness, this

would be very helpfulxi. If you are satisfied that the client has testamentary capacity, you must, unless

you refuse to act for him altogether, act on instructionsxii. In the end the question must be: what is best for the client?

b. vol execution i. related to mental soundness

ii. must not be under compulsion.iii. Ask person who accompanies to leave ward – satisfy urself he knows what he is

doingc. no undue influence

i. can be perpetrated on person days or mths earlierii. if under control of anyone, he may not tell u

iii. check fr conversation! – eg signs of being under dominationiv. clear nagging doubts before u proceed

d. knowledge of contents before execution i. eng or non eng speaking clients

ii. testator mustknowwhat he is signingiii. where non eng, get someone who speaks his lang or dialectiv. take along secretary or lawyer – get them to read the will to the patientv. bith attesting witnesses must sign at same time as testator

vi. the sec or lawyer will have to sign as interpreter/attesting witness and add note that contens of will were explained to patient in hokkine dialect which he apopeared to understand, confirm contents to be correct before signing the will (words to such effect)

vii. tstator must be told contents of will first!viii. Must mention in note that sec had attested to willand that he had understood it!

ix. NOTE is therefore very impt – explanatory note helps to validify.x. Otherwise court will get affidavit fr attesting witnesses tt contents of will were

explained to the testator in hokkine dialect. Deponent also to say that he understood it

xi. So note eaves trouble of having affidavit which mewans adjournment and costsxii. All solicitors’ fault for not having note entered in first place

b) compliance with formal reqts – a. any language

i. Chinese, etc. all that is nec for formal reqt be met b. must be apptent of executor

i. Important as if there is none appointed, it becomes intestate

ii. Executor can be anybody above the age of 21iii. And cannot be a bankrupt; if he/she is a bankrupt, then cannot be appointed.

Section 130 of the Bankruptcy ActDisqualification of bankrupt130. —(1) In addition to any disqualification under any other written law, a bankrupt shall be disqualified from being appointed or acting as a trustee or personal representative in respect of any trust, estate or settlement, except with leave of the court.

(2) Any disqualification to which a bankrupt is subject under this section shall cease when — (a) the bankruptcy order against him is annulled or rescinded; or (b) he is discharged under Part VIII.

(3) Any person who acts as a trustee or personal representative while he is disqualified by virtue of subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both.

iv. There is no need to appoint more than 1v. But if there are issues with “minority interests”, then need 2 administrators

c. age – 21 i. A will can be made by any person over 21, unless on active combat duty

d. proper execution at foot of will i. to be signed by testator

ii. wills act x say must sign every pg of will but in practice must ensure that every pg signed!!!! A lot of perverse pple in family who will not want will as drawn to be proved and assets distributed on basis of testator’s own wishes. The may replace the pages in the middle with sth else!

iii. Sol need not sign with him though you maye. attestation by 2 witnesses

i. must sign at same time as testatorii. who qualifies – anyone above 21

iii. but with proviso that attesting witness shld not be a beneficiary of estate nor shld the attesting witness be a spouse of the beneficiary

iv. eg will is valid but gift to nephew is not valid where nephew was an attesting witness ie that gift automatically lapses. Ie attesting witness who is beneficiary or spouse of the beniciary wil not be entitled to receive the gift.

f. compliance with law of place of execution (s 4,5,6 of wills act) i. for sg – see above: apptment of executor etc

ii. diff countries diff lawsiii. section 5 wills act recog as valid a will executed in accordance with reqts of the

law in the country where it was executediv. can also make will according to domicile of the testatorv. when flying, law of domicile applies! – Singaporean, Singapore will apply

vi. but place of registration of aircraft also applies vii. see section 5

g. Need to ensure that the correct name of the testator is recorded Name as it appears in I/C: National Registration Act Sometimes names are rendered in shorter forms at initial interview, get

variations of your client’s name Find out variations of name from personal representatives Sometimes, his fixed deposit account might have a variation and etc.

Rules as to formal validity.5. —(1) This section shall take effect notwithstanding any other provisions of this Act. (2) A will shall be treated as properly executed if its execution conformed to the internal law in force — (a) in the territory where it was executed;(b) in the territory where the testator was domiciled at the time —(i) when the will was executed; or(ii) of his death;(c) in the territory where the testator habitually resided at either of the times referred to in paragraph (b); or(d) in the state of which the testator was a national at either of the times referred to in paragraph (b).(3) Without prejudice to subsection (2), the following shall be treated as properly executed: a) a will executed on board a vessel or an aircraft of any description, if the execution of the will

conformed to the internal law in force in the territory with which, having regard to its registration (if

any) and other relevant circumstances, the vessel or aircraft may be taken to have been most closely connected;

b) a will so far as it disposes of immovable property, if its execution conformed to the internal law in force in the territory where the property was situated;

c) a will so far as it revokes a will which under this Act would be treated as properly executed or revokes a provision which under this Act would be treated as comprised in a properly executed will, if the execution of the later will conformed to any law by reference to which the revoked will or provision would be treated as properly executed;

d) a will so far as it exercises a power of appointment, if the execution of the will conformed to the law governing the essential validity of the power.

(4) A will so far as it exercises a power of appointment shall not be treated as improperly executed by reason only that its execution was not in accordance with any formal requirements contained in the instrument creating the power. (5) In determining for the purposes of this section whether or not the execution of a will conformed to a particular law, regard shall be had to the formal requirements of that law at the time of execution, but this shall not prevent account being taken of an alteration of law affecting wills executed at that time if the alteration enables the will to be treated as properly executed. (6) Where a law in force outside Singapore falls to be applied in relation to a will, any requirement of that law whereby special formalities are to be observed by testators answering a particular description, or witnesses to the execution of a will are to possess certain qualifications, shall be treated, notwithstanding any rule of that law to the contrary, as a formal requirement only. (7) The construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will. (8) Where under this section the internal law in force in any territory or state is to be applied in the case of a will, but there are in force in that territory or state two or more systems of internal law relating to the formal validity of wills, the system to be applied shall be ascertained as follows: (a) if there is in force throughout the territory or state a rule indicating which of those systems can properly be applied in the case in question, that rule shall be followed; or(b) if there is no such rule, the system shall be that with which the testator was most closely connected at the relevant time, and for this purpose the relevant time is the time of the testator’s death where the matter is to be determined by reference to circumstances prevailing at his death, and the time of execution of the will in any other case.(9) This section shall not apply to a will of a testator who died before 26th June 1992 and shall apply to a will of a testator who dies after that date whether the will was executed before or after that date.

The place where the testator signs the will1. Must sign at the end of the will2. Do we need to sign on every page? No. It is optional.3. But as a matter of practice, sign on every page.4. In today’s environment, it is better to be safe than sorry

SEE PRECEDENT OF A SAMPLE WILL (attached – Michael ong’s will)

Standard clauses- First clause - Declaration of intention to make will. Nec to say that this is the last will; there may be

other wills! will is always ambulatory and x crystallize until death. Therefore state in will tt this is the last will and testatament

Declaration of testamentary intention: identification of testator

‘This is the last will and testament…’

Full name, I/C no, address For estate duty purposes

Note definition of ‘will’ in s 2 Wills Act:

‘will’ includes a testament and an appointment by will or by writing in the nature of a will in exercise of a power and also a disposition by will and testament and any other testamentary disposition.

- Revocation clause – wills can be in simple form. o ‘Testamentaory dispsitoins’ after the word will is useful – man may execute codicil which is a

suppmentary will. Instead of making fresh will, person may make codicil in which he supplements his earlier will.

o Supplement - Add on/ subtract

o This codicil must follow same format and formal reqts of a willo Note that he does not revoke the earlier will except for this partr change

Eg of a codicil I hereby revoke clause xx of my will… I hereby confirm that other clauses in my will remain…

Revocation clause

‘I revoke all former Wills and Testamentary Dispositions heretofore made by me.’

The will then becomes last and binding will of testator Necessity of this clause depends on whether testator wants to revoke previous wills: e.g. he might have

made, or wish to make, a will for families that he might have outside of Singapore

[See further 3. Revocation and alteration of wills]

- Appting executor and trustee – very impt – if not appted, then administered as if it intestate, prvn in will effective but instead of applying for grant of letters of probate (FOR WILL), will apply for grants of letters of administration (intestate cases). Therefore must mention who executors and trustees are going to be.

o Contingency arrangement – if executor who is appted not able to accept office then appt substitute (impt in case the executor and trustee also dies)

o Must be above age of 21o Can appt infant, but cannot apply for letters of grant of probate until reaches 21 – and can only

apply with permission of guardiano Guardians to applyo ‘Durante minore…’ During pendency of adulthood of the infant executor - o Executor and trustee shld not be a bankrupt – section 130 BA x allow bankrupts to be appted

as executors and trustees of wills

Appointment of executor

‘I appoint X of [address] to be the sole executor and trustee of this my will.’

At least one executor must be appointed, otherwise the testator dies intestate apply for Letters of Administration with will annexed: administrator appointed under such circumstances = ‘administrator with the will annexed’ or administrator cum testamento annexo (cta)

If application for administration cta has to be made, then court usually requires applicant to furnish administration bond additional inconvenience and considerable nuisance unless all creditors and beneficiaries can and do consent to dispensation of administration bond

Note that while more than one executor may be appointed, the appointment of too many executors may cause difficulty in the administration of the estate

Trustee point?

- (NOTE: Flat rate of tax is payable on trust incomeo If asses not vested in proper benf, blanket tax rate of 20 per cent payable on all incomeo So testator shld aporp it to diff beneficiaries. Then personal tax rate applies.o If stays in trust, 20 percent applies!)

- Apptment of guardian of infant childreno If one of couple dies, other spouse automatically the guardiano But can opt out of this and appt another person with consent of natural parento Choose someone who is responsible and affectionate enough to look after child

Appointment of guardian

‘I appoint my [state relationship] Y of Singapore to be the guardian of my infant children.’

This should be done if the testator has minor children As the testator may only wish to appoint a guardian if spouse predeceases, use a clause such as the

following: ‘If my wife does not survive me by thirty days I appoint my [state relationship] Y of [place of domicile] to be the guardian of my infant children.’

- Apptment of donees of specific and general legacieso Specific legacy – described and named. Eg racing car. I give my racing car to my nephewo Genral legacy – I give 10,000 dollars to my nephew. If no demarcation/earmarked – then this

is only a general legacy. Paid fr whatever funds available in residuary estate.

o See cl 4a) – jt tenancy. Survivor of 2 will acquire entire house. Cannot will away! Contractual oblig – when he dies, wife will take. But where he is survivor of the two, he can will it away. This is important – together with all fittings, fixtures etc

o Bear in mind that house given away - whether or not it includes or chattels in it – so must mention whether the furniture etc will also go (only fittings and fixtures come together with the house)

o Cl 4b) – if fund not mentioned as to where money to come from, money given out fr residuary estate, which is what is left behind after all specific and general legacies have been given away (general legacy)

o Cl 4c) – specific legacy o Cl 4d) – stocks and shares both general and specific legacies – at time of death, becomes

crystallized and therefore what daughter will enjoy. Bullion gold – specific. Testator not bound to keep promises in will. It is not a contract tt he enters with the

benef/!!! He can chuck this will and mke another.

Specific and general legaciesSpecific legacy: Gift of named itemGeneral legacy: e.g. ‘to pay the sum of $50,000 to my wife’ general legacy because testator has not specified where the sum of money is to come from

- Residuary gift – also very impto Gives away whatever not specifically mentioned.o Read 4(e) – every word is impt

Rest and residue – very impt, eg where client gets unexpected sum of money fr elsewhere and x know of it. This then falls into intestacy!!! To avoid such sitn, draw client’s mind to such unexpected sitn – must therefore provide for such sitn. So that he can cater for the person he wants to cater to rather than let wife or children get it naturally (if he doent want to)

Wht is distinction bet executor and trusteeo Executor carries out all formaltieis prior to distribn of estate –

applying for grant, writing ot bank, getting info etco Once this is done and assets collected, he then becomes a trusteeo Same persono In beginning, he is still a trustee but only in loose senseo The mmt execution completed, becomes trustee, he is then to

distribute etc. ‘postponing’ – can don’t sell immed. ‘Sale and conversion of the same’ – also impt – discretion to trustee impt. So that no

quarrels among beneficiaries. Some in haste to sell and splurge. Prudent trustee will not do so. Esp where property value can go higher, then shlkd not sell yet

with landed peropty – if no power to postpone sale if more than 6 yrs pass fr death, trustee cannot sell landed proepryt belonging ot estate must pply under section 35.2 CLPA before he can sell

such power will avoid you having to take out OS to court fo roder to sell property (must also get value of property)

to avoid such hassle, give power to trustee and let him sell it as an when he likes in his sole discretion.

Residuary gifts

‘To hold the rest and residue of my estate upon trust for such of my friends, X and Y as shall be living at the date of my death, and if both shall then be living, in equal shares as tenants in common.’

The residuary clause is as important as the clause appointing the executor / administrator If testator acquires additional assets post-will, the residuary clause settles distribution of those assets in

equal shares If there is no residuary clause, the assets fall into residue and become distributable under intestacy law Best to avoid this situation since raison d’etre behind making a will is to ensure client’s estate

distributed according to his wishes

- Clause 4(f) – even if this clasue not included, section 26 wills act provides that where person dies, leaving a will, and in tt will he has provided for his children certain share in his estate, if any of the children predeceases him, the gift to tt child shall not lapse but evolve to that child’s children/issues.

o ‘per stirpes’ – stirpes means root. Here has wife and children. If son dies first, leaving only wife and other child, then assuming son has 2 issues, share will go to children per stirpes ie will take father’s share (1/4, ¼) = Per stirpes – to take according to root. VS per capita – both grandchildren will take equally with the aunt of the two grandchildren.

- “Testimonium” clause/ concluding clauseo Testator has accepted terms of the willo This is the testator’s acknowledgement that he acknowledges the terms of the will.

- durat (?)/Attestation clause – testator signs and two attesting witnesses signo All 3 must be present at same time and sign at same timeo If did not sign at same time, will is invalid and no provn in will will apply – ineffectiveo Does the Witness Need to Read and Understand the Will? No.

- Anybody who is the beneficiary or the spouses if the beneficiaries should not be witnesses

- This is because the gift to them might be invalid.- If there are, they do not get that legacy.

Attestation clause The witnesses do not have to read the will and understand what the testator is doing **Important: beneficiary under the will and his/her spouse cannot witness the will while the will is

not rendered invalid, the gift to them will be [cf. Ross v Caunters] BUT if beneficiary subsequently becomes spouse of witness, gift will not fail: Will not to be invalidated by reason of incompetency of attesting witness. If any person who attests the execution of a will shall, at the time of the execution thereof or at any time

afterwards, be incompetent to be admitted a witness to prove the execution thereof, the will shall not on that account be invalid.

Executor not incompetent to be witness.s12. No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of the will or to prove the validity or invalidity thereof.

Benef and their spouses should not be attesting W – s.10. This does not invalidate the will but will invalidate the legacy given to the Benfy. A solicitor who fails to warn the client of this or fails to notice such a mistake may be liable to the benfy for negligence.1

But if there are 2 independent Ws besides the Benfy who have signed as attesting Ws, the will is valid and the benfy’s attestation will be disregarded for the purposes of S.10(1). In that situation the benfy would still be entitled to his legacy/entitlement – S. 10(3)

Note s 5 Wills Act the words used in the will should be chosen to show that this section has been complied with, even though no special form of attestation required by Singapore law:

Contents of wills

The importance of careful drafting

When drafting a will, need to make sure:(a) you know what the client wants to do(b) that what he wants can be done(c) that he knows what he wants to do(d) that what you write for him in the will says that which he wants to do(e) that what the client wants will be done

Careless drafting of a will lays solicitor open to suit in professional negligence: Ross v Caunters (1980) [HC Chancery Div]

Facts:- Solicitors prepared a will for a testator in accordance with his instructions- Did not supervise its execution, but sent it out to the testator for his signing- The solicitors did not:

1 Ross v. Caunters (1980) Ch. 297

(i) warn testator that care must be taken to ensure that witness not beneficiary or spouse of beneficiary

(ii) check that point on receiving the executed will back from the testator(iii) observe that an attesting witness was the plaintiff’s husband(iv) appreciate that the disposition in the plaintiff’s favour was thereby nullified

Held:A solicitor who is careless in drafting, or seeing to the execution of a will may be liable in negligence to a person excluded by that solicitor’s negligence from taking a share of the estate.

Revocation and alteration of wills

Revocation of wills Include the revocation clause even if there is no previous will, otherwise executor may be called upon to

prove there is no prior will if no-one can remember whether it is the first and only will or not Whether prior wills need to be destroyed: while destruction may be evidence of animus revocandi

(intention to revoke), prior wills may sometimes be useful in ascertaining the testator’s desires / intentions

Always make sure that revoked prior wills cannot be put forward for probate unchallenged Any appointment, provision or disposition contained in an earlier will which the testator wishes to

continue, should preferably be provided for by specifically restating it in the new will. Otherwise, make specific provision in new will for that part of the old will to remain in force.

Note the following provisions of the Wills Act:

Will to be revoked by marriage except in certain cases.13. —(1) Every will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, executor or administrator or the person entitled under the Intestate Succession Act Cap. 146.(2) Notwithstanding subsection (1), where a will made on or after 29th August 1938 is expressed to be made in contemplation of a marriage, the will shall not be revoked by the solemnization of the marriage contemplated; and this subsection shall apply notwithstanding that the marriage contemplated may be the first, second or subsequent marriage of a person lawfully practising polygamy. No will to be revoked by presumption from altered circumstances.14. No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances. No will to be revoked by presumption from altered circumstances.14. No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances.

Revocation of will or codicil.15. No will or codicil, or any part thereof, shall be revoked otherwise than —(a) as provided in section 13 [will to be revoked by marriage except in certain cases];(b) by another will or codicil executed in the manner by this Act required;(c) by some writing declaring an intention to revoke it, and executed in the manner in which a will is by this Act required to be executed; or(d) by the burning, tearing, or otherwise destroying the will by the testator, or by some person in his presence and by his direction, with the intention of revoking it.

Alteration of wills

Alterations made post-execution of will necessitate re-execution of the will:

Effect of obliteration, interlineation or alteration.16. —(1) No obliteration, interlineation or other alteration made in any will after the execution thereof shall be valid or have any effect except so far as the words or effect of the will before such alteration shall not be apparent, unless the alteration shall be executed in the like manner as by this Act is required for the execution of the will. (2) A will referred to in subsection (1), with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to the alteration or at the foot or end of or opposite to a memorandum referring to the alteration and written at the end or some other part of the will.

Alterations made prior to execution should be authenticated by:

(i) being referred to specifically in the body of the will itself; or(ii) the signature and initials of the testator and witnesses being placed on the will, usually in the

margin, adjacent to the alteration.

Alterations – no need to re-type entire will, amendment can be made in pen but T and all Ws to initial the change –S. 16(2) WA

Additional matters- Some testators like to tie up the estate because don’t want estate to be squandered- May want to give income fr estate for period of time- Revamp of law on accumulations and perpetuities

o Accumulation of income – section 31 Civil law act – period for accumulatig income is limited to max of 21 yrs

o Section 32 civil law act – capital assets can be kept for period up to 100 yrs or less than 100 yrs as testator may stipulate (old cl rule against perpetuities - life and lives in being plus 21 yrs)

- Once made, will can still be removedo Revocation must be expressly declared and in form of subseq will or where red line crossed

over will with the word ‘cancelled’o See section 16 wills act

- Quarrels among family members that prior will is effective and not subseq willo Can be said tt subseq wll revoked by deceasedo So impt that where there is revocation, ask client to prepare new will – and say that all prev

wills hereby revoked and this in my last willo Subsequent marriage revokes a will section 13 wills act

DISTRIBUTION IN EVENT OF INTESTACY

PERSONS ENTITLED AS BENEFICIARIES UNDER INTESTATE SUCCESSION ACT- caveat – this does not aply to muslim estate – son/daughter/wife

1. Spouses –2. Issues ie children 3. Parents4. Brothers and Sisters5. Issues of brothers and sisters6. Grandparents7. Uncles and Aunts – note cousins are not entitled!!!

If person makes will and rovides for child but he predeceases the testator, does the predeceased’s child lapse?

See s26 wills act – such gift to child who happesn to die before the testate DOES NOT lapse S26 saves this gift provided that predeceased child left issue ie his own children. But his

wife does NOT get a share

Gifts to children or other issue who leave issue living at testator’s death not to lapse.26. Where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of that person shall die in the lifetime of the testator leaving issue, and any such issue of that person shall be living at the time of the death of the testator, that devise or bequest shall not lapse, but shall take effect as if the death of that person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.

Same sitn arises in intestate estate as well See S7 intestate succession act

ISA does not define “spouse” (essential for the application of the Section 7 distribution rules) but Section 97 of the Women’s Charter specifically excludes a spouse who has been judicially separated.

However, lawful widows of polygamous marriages (i.e. marriages not void under Section 5(2) of the Women’s Charter) are entitled to share equally. (Section 8 of the ISA)

Section 5(2) of the Women’s CharterVoid marriages5. —(2) If any male person lawfully married under any law, religion, custom or usage shall, during the continuance of that marriage, contract a union with a woman, that woman shall have no right of succession or inheritance on the death intestate of such male person.Section 8 of the ISASpecial provision if the intestate leaves lawful widows.8. If any person so dying intestate leaves surviving him more wives than one, such wives shall share among them equally the share that the wife of the intestate would have been entitled to, had the intestate left one wife only surviving him.

“Hotchpot” does not apply in Singapore. (Section 9 of the ISA)

Section 9 of the ISAChildren’s advancement not to be taken into account.9. Where a distributive share of the property of a person dying intestate is claimed by a child or any descendant of a child of that person no money or other property which the intestate may during his life have given, paid or settled to or for the advancement of the child by whom or by whose descendant the claim is made shall be taken into account in estimating such distributive share.

How does the ISA apply? (Flowchart) Having determined whether, and to what assets of the intestate, the ISA applies, the intestate’s assets

distributable under the ISA are to be distributed in accordance with the Rules in Section 7.

Section 7 of the ISARules for distribution.7. In effecting such distribution the following rules shall be observed:

Rule 1If an intestate dies leaving a surviving spouse, no issue and no parent, the spouse shall be entitled to the whole of the estate. Rule 2If an intestate dies leaving a surviving spouse and issue, the spouse shall be entitled to one-half of the estate. Rule 3Subject to the rights of the surviving spouse, if any, the estate (both as to the undistributed portion and the reversionary interest) of an intestate who leaves issue shall be distributed by equal portions per stirpes to and amongst the children of the person dying intestate and such persons as legally represent those children, in case any of those children be then dead. Proviso No. (1) — The persons who legally represent the children of an intestate are their descendants and not their next-of-kin. Proviso No. (2) — Descendants of the intestate to the remotest degree stand in the place of their parent or other ancestor, and take according to their stocks the share, which he or she would have taken.

Rule 4If an intestate dies leaving a surviving spouse and no issue but a parent or parents, the spouse shall be entitled to one-half of the estate and the parent or parents to the other half of the estate. Rule 5If there are no descendants the parent or parents of the intestate shall take the estate, in equal portions if there be two parents, subject to the rights of the surviving spouse (if any) as provided in rule 4. Rule 6If there are no surviving spouse, descendants or parents, the brothers and sisters and children of deceased brothers or sisters of the intestate shall share the estate in equal portions between the brothers and sisters and the children of any deceased brother or sister shall take according to their stocks the share which he or she would have taken. Rule 7If there are no surviving spouse, descendants, parents, brothers and sisters or children of such brothers and sisters but grandparents of the intestate the grandparents shall take the whole of the estate in equal portions. Rule 8If there are no surviving spouse, descendants, parents, brothers and sisters or their children or grandparents but uncles and aunts of the intestate the uncles and aunts shall take the whole of the estate in equal portions. Rule 9In default of distribution under the foregoing rules the Government shall be entitled to the whole of the estate.

Important qn to ask also – whether intestate left spouse/spouses and/or issue including descendants or parents?- Distant kin remote possibility but have to be traced in cases of testacy

o To avoid this and other uncertainties, sol shld advise client ot make wil exclude all possib of intestacy

Inheritance (family provision) Act (IFPA)- IFPA x apply to muslims (section 1(2)); subj to this, dependant (as defined by section 3(1)) who is

reasonably provided for by distribution of deceased’s estate may apply to court for maintenance (section 3(2)-8) normally within 6 mths (section 4)

- Application by OS with supporting affidavit and proced governed by ROC (order 86)o Before grant is issued, potential applicant’s interest may be prxted by filing a caveat against

estate under ROC (O71 rule 37)o If deceased’s executors or next of kin refuse to apply for grant, citation proceedings may be

commenced ROC (O71 r 41)

INSURANCE

Under the Intestate Succession Act, the deceased’s estate will be distributed to persons in the following order:

(1) Spouses(2) Issues(3) Parents(4) Brothers and Sisters(5) Issues of brothers and sisters(6) Grandparents(7) Uncles and Aunts

The ISA does not apply to Muslims. If there are no persons in the above classes, the estate vests in the Government.

The problem with a person dying intestate and having no one to administer his estate is avoided by s 61 Insurance Act which enables insurance policies to be properly paid out to the deceased’s spouse and children before the grant of letters of administration.

Payment of life policy and personal accident claims without probate, etc.61. —(1) In any case where the policy owner of any life policy or personal accident policy of an insurer dies, and the policy moneys are payable thereunder on his death, the insurer may make payment to any proper claimant a prescribed amount of the policy moneys of all such policies issued by the insurer on the deceased’s life without the production of any probate or letters of administration; and the insurer shall be discharged from all liability in respect of the amount paid.

(2) If, in any case as is mentioned in subsection (1), estate duty is payable in Singapore on any such policy moneys as are there mentioned, the insurer may, notwithstanding section 44 (2) of the Estate Duty Act (Cap. 96), pay to any proper claimant a prescribed amount of the policy moneys of all such policies issued by the insurer, without the policy moneys having been included in such a schedule or certificate as is mentioned in that subsection.

(3) Before making any payment under subsection (2), the insurer shall give notice by registered post to the Commissioner of Estate Duties with such particulars as the Commissioner may require.

(4) Subsection (2) shall apply in relation to policy moneys under policies of which the deceased was not the policy owner at his death as it applies in relation to any such policy moneys as are mentioned in subsection (1).

(5) Where an amount is paid under subsection (2) on account of any policy moneys, the insurer may, before payment of the balance of such policy moneys to any proper claimant, apply the whole or part of the policy moneys to pay any unpaid estate duty payable on the death of the insured.

(6) In this section — (a) “policy owner” includes a part owner of a policy;

(b) “proper claimant” means a person who claims to be entitled to the sums in question as executor of the deceased, or who claims to be entitled to that sum (whether for his own benefit or not) and is the widower, widow, parent, child, brother, sister, nephew or niece of the deceased; and (c) in deducing any relationship for the purposes of this subsection, an illegitimate person shall be treated as the legitimate child of his actual parents.

The “proper claimant” in s 61(1) IA is defined in s 61(6)(b) IA – includes personal representatives and the next-of-kin.

The “prescribed amount” in s 61(1) IA is stated in r 28 Insurance Regulations - $150,000.

Payment of policy claims without probate28. For the purposes of section 61 of the Act, $150,000 is prescribed as the amount of life and personal accident policy moneys which may be paid without probate or letters of administration or without having been included in a schedule or certificate under section 44 (2) of the Estate Duty Act (Cap. 96).

The insurance company will send a notice to the Commissioner of Estate Duties as required under s 61(3) IA at the same time as it sends the money out to the beneficiaries.

Letters of representation- Letters of probate

o Term used for grant where deceased died testate- Letters of admiun

o Deceased died intestateo If will x name executor, then you shld apply for grants of letter of admin with will

annexed ( cum testamento annexo)

Personal representatives- Executor (testate) and administrator (intestate)

Lee Han Tiong v Tay Yok Swee [1997] 1 SLR 289- Will is also a document of title- Refers to the will as vesting him. Merely authenticate if renders official.- Grant remains in court until estate duties

CommentsSection 37(1) of the Act provides that where a person dies intestate in his movable and immovable property until administration is granted shall vest in the Chief Justice and Section 37(2) provides that on the making of an order for a grant in administration, all such property shall vest in the administrator.

Title and authority of personal representative1. Testate – from will. Letters of probate authenticate title. Until obtained, title is not authenticated.

Therefore must have grant. At hearing he must adduce the grant

o Re ong soon chuan (2000) 2 SLR 93 – right of executor to bring petition for bankrupty against debtor to estate. Filed petition for

bankruptcy. Assiatns registrar dismissed application, saying that executor had no authority to file a petition because not yet obtained the grant of probate. Executor appealed against decision – case went before Selvam GP, he upheld decision of registrar and held that

FactsThis was an appeal against the Registrar’s decision that the executors of the estate of a deceased person could not file a bankruptcy petition. Before the court could make a decision, it was revealed that the grant of probate had not been extracted. Proceedings stopped while counsel prepared submissions on the locus standi point. On resuming, the court decided not to proceed further and the matter was adjourned indefinitely, with liberty to restore after extraction of the grant. The court took the opportunity to explain the legal position.Held, adjourning the matter indefinitely with liberty to restore after extraction of the grant:(1)       An executor acquired recognition of his powers and status immediately upon the testator’s death even though probate had not been obtained.

2. but he acd nth under issue of letters of admin - An administrator may not even commence proceedings until he has obtained the grant of letters of administration. Accordingly, ‘if a plaintiff brings an action in a representative capacity as administratrix, then that action is a nullity if she was not at that date by law administratrix with a proper grant. Even if she obtains a grant within a week, a month or a year afterwards it does not relate back. The writ is a nullity from the beginning.’(2)       An executor derived his title from the will, and spoke from the will, and not the grant of probate. He could therefore act and commence an action at any time after the testator’s death, but he could not maintain the action and proceed beyond the stage at which it became necessary to prove his title because probate was the only proof of his title. The stage at which the executor has to prove his title is the hearing at which a formal order will be made(3)       Where the person who claimed as executor had not obtained probate, the court could adjourn the proceedings and give a reasonable time to obtain and produce the grant of probate for the inspection of the court and other parties.Judgement:2       Where the owner of any property has made a testamentary disposition, namely, a will, and has named an executor, though it remains ambulatory while he is alive, upon his death it becomes a declaration of his intentions as to how his properties are to be dealt with. More importantly it vests his properties in his executors upon his death. In respect of immovable properties the will, so to speak, is a specie of conveyance. In the result, the executor derives his authority and title from the will and is entitled to assert his power according to the terms and tenor of the will. There is no hiatus in the title. Title is kept alive and continuous by the act of the owner, namely, the will-maker.3       The concept of continuity of title applies even when the owner dies without a will. The office of an administrator derives its status and title entirely from the grant of letters of administration and only from the time of its issue with the imprint of the seal of the court. In the case of a grant of letters of administration, in reality, there is a hiatus between the death of the person whose estate the administrator will represent and the issue of the grant. Until 1997, there was a legal fiction created by s 37 of the Probate and Administration Act (Cap 251) as it was before 1 October 1997: “Where a person dies intestate his movable and immovable property until administration is granted in respect thereof shall vest in the Chief Justice in the same manner and to the same extent as it vests in the Probate Judge in England”. It was a fiction because the Chief Justice had no duties and his supposed status and title evanesced the moment the grant was issued. From 1 October 1997, when a person dies intestate, his real and personal estate vests in the Public Trustee. however, the vesting by itself does not confer or impose on him any power, duty, right, equity, obligation or liability in respect of the estate. So the vesting of title on the Public Trustee is a fiction to maintain continuous title. The moment a grant of letters of administration is issued, title relates back to the time of death of the owner of the property and totally eclipses the status and title of the Public Trustee. See s 37 of the Probate and Administration Act (Cap 251, 1985 Rev Ed, as amended by Act 7 of 1997). Thus the continuation and transfer of title is the result of operation of law and not an act of the owner.4       In consequence of what has been stated above, an executor acquires recognition of his same powers and status from the moment of the death of the testator even though he has not obtained probate. On the other hand the administrator acquires nothing until the issue of the letters of administration. In other words, an executor appointed by the will is entitled to describe himself so, the moment the will acquires force and effect upon the death of its maker. On the other hand, an administrator may call himself an administrator only when the grant of letters of administration is issued. “Probate” in this context means “a grant under the seal of the court issuing the same”. “Letters of administration” means “a grant under the seal of the court issuing the same, authorising the person or persons therein named to administer an intestate’s estate in accordance with law”. See s 2 of the Probate and Administration Act (Cap 251). Furthermore, the grant here means an actual grant impressed with the seal of the court with the estate duty schedule attached to it. A grant so issued being a document emanating from the court proves itself. See s 93 of the Evidence Act (Cap 97, 1997 Rev Ed) Exception 2. So the courts, created for the sole purpose of upholding the law, more than any other institution, dispense with the requirement of the production of the grant. Additionally it is necessary to ensure that the provisions of the Estate Duty Act (Cap 96) are not bypassed, for s 42 of the Estate Duty Act provides that probate and letters of administration shall not be issued until estate duty is paid or postponement is granted.

This is adv of will. Will is title that gives authority to executor to manage affairs of deceased See case

2. Intestate – derived fr grants of letters of admin Vesting in public trustee merely a formal act Title is derived fr grant of letters of admin – until this is obtained, roperty of intestate vests in

public trustee but no transactions can be carried out Section 37(1) probate and administration act

Purely procedural reqt No lack of ownership of estate of owner who died intestate Why used – historical

Control of rent act – gave protection for htose who rented property built before 1947 Only rental prevailing in 1938 for such properties – nominal rent only Legis repealed in 1997 If landlord wanted to repossess controlled property because tenant had died or he had

sublet it without landlord’s consent, he had to serve formal notice – but cannot serve on dead

So he had to serve on chief justice of sg (prroi to amendment – now public trustee) – then cld initate action for recovery for property. So this was why fictin of formal reqt introduced.

- Must read two cases for grasp of authority and title of person who is executor (fr will) and person merely administrator (only fr grant)

Tacplas Property Services Pte Ltd v Lee Peter Michael (administrator of the estate of Lee Chong Miow, deceased) [2000] 1 SLR 637- Traces history in egland and sg of powers of personal reps- Case impt on whether action of 1 executor can bind others and whether same for adminidstrators.- For executors – 1 can act on behalf of estate and bind the others - For administrators – they have to act collectively. the act of one administrator is not sufficient to

bind other administatrators - Case involved purchae by tacplas of land belonging to estate. Two siblings – Christina loke and brother.

Administrators of estate who sold land to tacplas. In anticipation of sale, tacplas paid compensation to tenants to get them out of property. Then loke entered into agreement toformalise the same. Martin lee brother did not sign it because bedridden. His son then became committee of their father who was paralysed. He challenged the deal that aunt had entered into. In law, his arg was valid.

- But doctrine of relation back – even if adminstarotr done sth improper, court can sanction this transaction because for benefit of estate. So takes back to time when initial agreement carred out

- So occur validated the sale because peter lee was slow, therefore estopped fr denying tt agreement to sell land to tacplas was valid

FactsThe deceased died intestate in 1969. His son Martin petitioned for letters of administration to be granted to himself and his sister, Christina. The order granting the letters was made but the grant was never extracted. After, Martin suffered a severe stroke and became incapable of managing his own affairs. Martin’s son, the respondent in this case, and the respondent’s wife were appointed as the Committee of Martin’s Person and Estate. Christina and the respondent then applied to court to revoke the original grant of letters of administration and to appoint them as administrators of the deceased’s estate. The application was granted on 28 July 1995 and the grant was extracted.In the meantime, before the grant was extracted, Christina had, as “a personal representative” of the deceased, purportedly entered into an agreement (“the agreement”) with the appellants for the sale of property owned by the deceased. At the time of the agreement, the property was subject to adverse possession claims. None of these claims succeeded and in order to prevent any further trespass or unauthorised occupation, Christina permitted the appellants to take possession of the property, after which they maintained the property at their own expense for almost four years from June 1998. The respondent was aware of the expenditure incurred by the appellants and did nothing to stop the appellants from doing so.Following the extraction of the grant of letters of administration, the appellants’ solicitors made several requests that an application be made to the court to obtain the requisite sanction for the sale of the property to the appellants. However, no satisfactory response was forthcoming from Christina or the respondent. The respondent then commenced OS 611/98 against the appellants for a declaration on the validity or otherwise of the agreement. The respondent contended that the agreement was not binding on the estate as Christina lacked authority to enter into the agreement alone without the consent of the co-administrator, Martin, who was at the time incompetent. The appellants’ defence was that Christina had acted with authority and in the alternative, the respondent was estopped from asserting that the agreement was not binding on the estate. The judge found in favour of the respondent. The appellants appealed to the Court of Appeal.The broad issues on appeal were: firstly, whether administrators had joint and several authority to deal with the assets of the deceased such that the act of one of them was binding on the other and the estate; and secondly, whether the respondent was estopped from denying that the agreement was valid and binding on the estate.

Held, allowing the appeal in part:

(1) There were well-established judicial authorities for the proposition that the act of one executor could bind the estate and the other executors. On the other hand, administrators of an estate must act jointly and the act of one administrator cannot bind the estate, unless that act was ratified by all the administrators. This was due to the different sources of powers and the competence between executors and administrators. An administration was in the nature of an office and where two or more persons were appointed as administrators, they should act jointly in the discharge of that office. This was in the interest of orderly administration of an estate so that people who dealt with the estate could do so confidently that the estate would fulfil its bargain.(2) The property of the estate would vest in the administrator(s) upon the grant of administration. However, such vesting did not confer on the administrator(s) the authority to deal with those assets until the administrator(s) had extracted the order of the grant. Thus, the authority of an administrator to deal with the property of the deceased stemmed from the extracted grant, without which the administrator had no authority. Accordingly, Christina had no authority to enter into the agreement before the grant was extracted.(3) The doctrine of relation back, which allowed the title of the administrator to relate back to the time of the deceased’s death so as to give validity to certain acts of the administrator done before the extraction of letters of administration, did not operate to validate the agreement in this case. Although the pre-condition that the agreement was entered into for the benefit of the estate was satisfied on the evidence, the doctrine of relation back could apply only if all the administrators had ratified the act subsequently. As the respondent had refused to ratify the act, the doctrine could not apply.(4) In order for the claim in estoppel to succeed, there must be a clear and unequivocal representation by the respondent that he did not dispute the binding effect of the agreement and that he treated it as being valid. The representation need not be express and may be implied. Although mere silence and inactivity would not normally suffice, it could amount to a representation where there was a duty to speak.(5) On the evidence, the respondent was aware that the appellants had incurred much expenditure on the property because they believe the agreement was valid and binding. The respondent was under a duty to inform the appellants that he did not intend to ratify the agreement but instead, he did nothing to dispel the appellants’ belief. It was found that his conduct amounted to a representation that he was not disputing the validity of the agreement. As a result of relying on the representation, the appellants incurred expenditure towards the preservation of the property, which they would not otherwise have done. Accordingly, it was held that the respondent was estopped from asserting that the agreement did not bind the estate.

- Whether act of one executor binding on others –

Lee Han Tiong and others v Tay Yok Swee [1997] 1 SLR 289FactsThis was an appeal from an order of the deputy registrar that the claim on behalf of the estate of Goh Seong Pek deceased be struck out. The questions before the court was whether an executor could bring an action before a grant of probate of the will by which he was appointed an executor was issued; and whether he could do so without joining the other executors.Held, allowing the defendants’ claim for set-off:(1)    It was clear law that an executor derived his title and authority from the will of his testator and not from any grant of probate. The principle that an administrator could not bring an action until the grant of letters of administration had been issued did not apply to an executor.(2)    Section 37 of the Probate and Administration Act (Cap 251), which dealt with the vesting of property of a person dying intestate, was consistent with the position at law that the property of a deceased who died leaving a will vested in his executor upon death. The absence of a provision in respect of an executor corresponding to s 19 of the Limitation Act (Cap 163), which provided that the administrator be deemed to claim as if there had been no interval of time between the death and the grant of the letters of administration, was also consistent with the position that an executor was competent to bring an action as executor before probate of the will by which he was appointed.(3)       Unless the will provided otherwise, each executor represented the testator. Any executor could settle an account with a person accountable to the estate and could release a debt and such settlement and release would be binding on the others. All executors were necessary and proper parties and ought to be joined either as plaintiffs or if they did not consent then as defendants