Introduction

Legacy planning is a vital part of preparing for the future. It ensures that your assets and wealth are passed down to the people and causes you care about most. At the heart of legacy planning is the creation of a valid will, a crucial document that dictates how your estate is distributed after your death.

In Singapore, the validity of a will can be broken down into two important aspects: formal validity and essential validity. Essential validity concerns the testator’s capacity to make the will, freedom from undue influence, and their understanding of the consequences of their decisions. Formal validity, on the other hand, deals with the proper execution of the will in accordance with the legal requirements laid out in Singapore’s Wills Act.

This month’s article is the first installment of a two-part series where we will focus on formal validity—the critical legal formalities required for a will to be valid in Singapore.

Section 5 Wills Act 1838 (“Wills Act”)

The law in Singapore which stipulates that the rules to formal validity need to be followed for a will to be valid is S5 of the Wills Act, in which S(5)(2) specifically provides that:

“Section 5(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)…”

Accordingly, if a Will is signed in an applicable territory which is not Singapore, then such will shall be treated as properly executed only if it has conformed to the internal law in force in the said territory. Section 5(6) of the Wills Act further emphasises this by providing that “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.”

Some Rules to Formal Validity Found in the Wills Act

In the event, however, if a will is signed in Singapore, the following rules to formal validity are to be adhered to (failure of which will lead to the will being rendered invalid):

• Section 4 Wills Act – The testator of the will needs to be a minimum age of twenty-one (21).
• Section 6 (1) Wills Act – The will needs to be in writing
• Section 6 (2) & (3) Wills Act – The will has to be signed at the foot or at the end by the testator him/herself. Two witnesses are required to be present at the point when the testator signs on the will and these two witnesses would have to sign on the Will as well before the testator.

It should be noted that Section 13(1) of the Wills Act, also states that any will made by a testator prior to his/her marriage, will be considered revoked save for the situation where the will had been made in contemplation of marriage as per Section 13(2) of the Wills Act.

Even though the following point does not invalidate the will, it should nevertheless also be noted that Section 10 of the Wills Act states that any gifts to witnesses of the will shall be disregarded and rendered void. Hence, a testator should never have its intended beneficiary be the witness to his/her will.

The Importance of Adherence to Formal Validity and the Case of [2014] SGHC 129

The case of [2014] SGHC 129 highlights the importance of adherence to Formal Validity. In this case,  the will in question was held to be invalid as it did not comply with the formalities required under the Section 6(2) Wills Act, which required that for a will to be valid, it must be executed by the testator in the presence of a minimum of two witnesses. The will was found to be witnessed by a sole witness and therefore was not in compliance with the law.

Due to the failure to satisfy this requirement, the will was rendered invalid which led to the estate being distributed in accordance with the intestacy law of the domicile of the deceased which was wholly different from the distribution instructions stated in the will. Due to the invalidity of the will, some of the originally named beneficiaries received less than what was intended for them, while many others received nothing at all because of the distribution under intestacy laws. individuals who were not named in the will also benefitted unexpectedly from the estate, gaining a windfall through intestacy. The discrepancy in the sums that were payable to the rightful beneficiaries amounted up to AUD 719,000.

Our Concluding Thoughts

As seen in the above, compliance with the formal requirements set out in the Wills Act is imperative for the validity of a will. Failure to adhere to these statutory formalities, such as the requirement for attestation by two witnesses, may result in the will being rendered invalid.

The case of [2014] SGHC 129 serves as a cautionary example of the potential repercussions arising from non-compliance where substantial amounts of gifts were distributed in a manner that had not been contemplated by the testator, resulting in an ugly legal battle between parties.

It is thus important to have proper legal guidance in the drafting and execution of a will in order to avoid running the risk of a testator’s estate being distributed contrary to his/her wishes.

How can SMTP Help?

The failure to ensure strict compliance with formal validity can lead to considerable financial loss for intended beneficiaries and a windfall for unintended recipients, underscoring the need for a guiding hand to ensure meticulous adherence to legal formalities in the drafting and execution of wills. Tapping on decades of experience and our very own Wealth Legacy Screening process (involving a detailed, step-by-step, fact-finding process to determine a client’s circumstances and needs), our lawyers will be able to assist you on the drafting of your will in a very systematic and structured manner, ensuring certainty and clarity in the management and distribution of your estate.

We also believe in close engagement with our clients, paying close attention to their individual facts and circumstances, and tailoring our advice and courses of action to cater to their specific needs and requirements. SMTP’s core philosophy is to provide bespoke legal advice based on our private clients’ specific needs and requirements, as cases always differ in their fine details. Our team of dedicated staff is ever eager and prepared to assist interested parties. Should you or your clients require any assistance in trust or real estate matters, please feel free to contact our Business Development Team to schedule a consultation. We look forward to working with you.