Part 1: “Where There's A Will There's A Way”
One of the most important things that one could do during his or her lifetime is to avoid leaving a mess behind when they passed on. It is essential for a person to have a Will to ensure his or her estate is well taken care of.
What is a Will?
To state it simply, a Will is a written document that states the wishes of the deceased (also known as the “Testator”). It will determine how his or her estate is managed and/or distributed. For example, it may include instructions on the division of movable and immovable property or the guardianship of a child. Legally, it is defined in Section 2 of the Will Act 1959, which is reproduced below:-
“a declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil 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 or testament of the guardianship, custody and tuition of any child”
Further, there are 4 criteria that must be fulfilled before the Will can be valid. They are:-
- Testator must be of sound mind when signing the will;
- Testator must be 18 years old and above;
- The Will must be in writing;
- The Will must be signed in the presence of two or more witnesses, where the witnesses must be above 18 years old.
Why is it so important to have a Will?
There are a good number of reasons why a person should have a Will prepared. Here are a few reasons (in no particular order):-
- The Testator can appoint his or her Executor* of choice to administrate the estate.
- The Testator can determine the Beneficiaries** of the estate.
- The Testator is able to decide how his or her estate is to be distributed.
- The Testator can choose the appropriate guardian for the child, who has not attained the age of majority.
- The Testator’s family members will unlikely dispute on how the estate is distributed.
- The estate of the Testator is identified and none will be left unclaimed.
- Simpler court proceedings for the Testator’s family or Executor to obtain the power to administrate the estate.
* An Executor is appointed to administrate the Testator’s estate according to the Will
** Beneficiaries are the people or organizations that the Testator name in the Will to receive the estate. A Beneficiary should not be a witness to the will to avoid his or her entitlement to be void.
It is possible that a person has more than one Will prepared throughout his or her lifetime. Circumstances and events that happened to an individual calls for a change in the content of the Will. In such situation, the ‘old’ Will is revoked and the new Will effectively becomes the valid Will.
Although the new Will may fail to expressly state that the ‘old’ Will is revoked, section 14 of the Will Act 1959 will nonetheless declare the ‘old’ Will as such. However, the criteria for a valid Will as mentioned above needs to be fulfilled, regardless.
That being said, there are some examples of how the ‘old’ Will remains effective and valid:-
- A Will that is drawn up during a marriage remains valid despite a divorce or separation of the couple. A new Will is necessary if the Testator’s intention has been changed.
- If the Will is destroyed without the Testator’s intention to revoke it, the Will remains valid. (Section 14 of the Will Act 1959)
What if the deceased left without a Will?
The deceased will be called an Intestate. The distribution of the assets is governed by Section 6 of the Distribution Act 1958 and will be in the following manner:-
Surviving next of kin
a spouse and no *issue and no parent or parents
no issue but a spouse and a parent or parents
issue but no spouse and no parent or parents
no spouse and no issue but a parent or parents
a spouse and issue but no parent or parents
no spouse but issue and a parent or parents
a spouse, issue and parent or parents
* “issue” – children and the descendants of deceased children (section 3 of the Distribution Act 1958)
** not entitled
What if the Intestate died leaving no spouse, issue, parent or parents?
The estate will be distributed to the rest of his or her relatives in the following order:-
- Brothers and Sisters (if more than one, in equal shares)
- Grandparents (if more than one, in equal shares)
- Uncle and Aunts (if more than one, in equal shares)
- Great Grandparents (if more than one, in equal shares)
- Great Grand Uncles and Grand Aunts (if more than one, in equal shares)
If the Intestate has no surviving family members or the estate remains unclaimed, the government will have the power to take the estate. However, in order to do so, none of the above mentioned people are declared alive or they cannot be traced.
As far as the guardianship of the child, the surviving parent will have full custody of the child as provided in section 6 of the Guardianship of Infants Act 1961 if no guardian has been appointed by the deceased. He or she could also be the sole guardian if the appointed person refuses to act as a joint guardian.
It is very important to highlight that the article relates to the distribution of a non-Muslim’s estate. A Muslim’s estate is governed by Faraid law and the Distribution Act 1958 is inapplicable to the said individuals. If a non-Muslim Testator converts to Islam, the Will that he or she previously possessed is automatically revoked.
In the next article, we will be discussing about how the deceased’s family members or Executor can apply to Court to administrate the estate, with or without a Will.
By: Joanne Leong & Lee Su Ting
DISCLAIMER: This article is for general information only and should not be relied upon as legal advice and/or legal opinion. Messrs Yeoh & Joanne accepts no liability for any loss which may arise from reliance on the information contained in this article.
“a declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil 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 or testament of the guardianship, custody and tuition of any child”.
律师事务所合伙人梁佩欣律师(Joanne Leong)与李淑婷律师(Lee Su Ting)
免责声明:本文仅供参考，不应作为法律建议和/或法律意见。Yeoh & Joanne律师事务所不会承担因依赖本文所含信息而产生的任何损失的责任。