Why should I make a will?

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Why should I make a will?
Credits: Photo courtesy of: SG Probate
It is inevitable that we do our own “stock take” every now and then, and one of the niggling questions that we ask ourselves is “Should I make a will?”
Of course, once you enter the relevant sites, or speak to any legal person, you will know that the answer is “Yes”. It will serves many functions — one can specifically indicate their bequests, nominate their executors, guardian to their children, express their death rituals. A well-drafted will in accordance with the Testator’s wishes is truly his voice from the grave.
A simple search on this topic will bring us to many sites, including law firms, specialists and even DIY will writing agencies, since being paid for preparing wills is not the exclusive domain of lawyers.
So you can even draft your own will or ask anyone to do it for you! Basically, a will is a legally valid and enforceable document under Singapore law so long as:
Years of experience in drafting wills, and acting for Executors and beneficiaries of assets of Estates have taught me that basic does not mean simple, however!
Before we discuss how to draft or give instructions that best reflect our intentions and wishes, let’s address some of the misconceptions out there about what happens when one does not make a valid will.
Some of the wilder misconceptions that I have heard are:
  1. The assets of the deceased will go to the government
    That is totally incorrect in view of the Intestate Succession Act which stipulates the order of distribution of assets to the deceased’s family and relatives.When there is a nuclear family unit comprising surviving children from the deceased’s one and only wife and/or a surviving wife

    AND

    all the parties are on amicable terms, the process to obtain the Letters of Administration can be relatively straightforward. ​
  2. Estate duty is payable if there is no will
    Estate Duty has been removed for deaths on and after February 2008 and this applies to assets from any deceased persons, whether or not they have made a will.
The list of misconceptions can go on and on, and it is interesting how fable is often construed as fact!
There have been instances where clients have come to me, distraught because their true intention is to leave their assets in equal shares to all of their children, but one child or another thought otherwise. Sufficient care and precautions had to be taken to ensure that the Testator was given private space to express his/her true wishes and had a medical professional certify their mental fitness. Perhaps in such situations and instead of imminent challenges to the will, matters may be less complicated without one, as the Intestate Succession Act would come into play.
However, it is certainly better to err on the side of caution and have one’s intentions expressed in a will. Thus, the default answer is not wrong. Everyone should make a will even if only for the sake of one’s peace of mind.

So how can one go about making a will which truly expresses one’s wishes?

Remember to consider:
  1. The assets in one’s estate.

    Many people actually forget that their property may be encumbered with mortgages or debts against their properties. Totally unencumbered properties, i.e. properties free from loans are rare especially with investment properties. The beneficiaries who are bequeathed assets with encumbrances will have to fully pay up the debts attached to them if they are unable to make arrangements, such as a fresh mortgage, with the secured creditors.

  2. If specific assets are given, what if one makes changes in their asset holdings from time to time?

    This is now a “me” time for all of us downsizing, being more liquid, having changes in the expenditure spectrum — these are very real possibilities which will affect our assets. I have seen situations where a Testator bequeaths a house to Child A and his shares and stocks of equivalent value to Child B. Before his death, he sells the house which has been bequeathed to Child A. So Child B ended up getting substantially much more.

    To avoid the above scenario, it is quite common to apportion assets based on percentages. However, whilst this takes away the concern when there are changes in asset structures, distribution based on percentages can in practice result in the forced liquidation of assets to facilitate the distribution.

  3. Bequeathing a percentage of one’s assets to a third party, say a charitable or religious institution.

    This may result in a big burden on the Executors as they are fully accountable for the calling in and distribution of the estate’s assets. Trustees of these establishments have the right to demand for full records and disclosure of the Testator’s assets since they are entitled to a percentage of it.

  4. Circumstances that can challenge the validity of a will.

    Any will made by a testator is revoked by marriage but not other circumstances such as a birth of a subsequent child or grandchild.

  5. What if one or more beneficiaries under the will dies before the Testator?

    Under the Wills Act, there is provision for the grandchildren to step in the place of the deceased children, should they die before the Testator. However, it is always prudent to consider who one would bequeath their assets to, in the event their beneficiaries predecease them.

Although this is nowhere near a comprehensive discussion about wills and legacies, we hope that this could help trigger some thought towards planning the next step.
JASMINE TAN ADAMS
LLB (HONS) NUS
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