Wills & Trusts
Enforcing or contesting a Will or Trust
How to contest the validity of a Will?
For a Will to be valid and enforceable, the following formalities must be complied with
- the Will is made in writing
- the Testator must be at least 21 years of age
- the Will must be understood by the testator
- the Testator must sign at the foot of the Will
- Testator’s signature must be witnessed by 2 or more witnesses
- Witnesses cannot be beneficiaries or spouses of beneficiaries
There are a number of ways to challenge the validity of a Will.
1. Failure to adhere to formalities
If the above six formalities are not complied with at the time the Will was made, the Will may be declared invalid.
2. The testator lacked testamentary capacity when the Will was made
Testamentary capacity refers to the ability to make complex decisions regarding one’s own property and affairs. Singapore case law has identified testamentary capacity to be found in four factors:
- Understanding the nature of drawing up a Will;
- understanding the extent of property being disposed off via the Will;
- knows who the beneficiaries are and can appreciate their claims to his property; and
- free of abnormal state of mind that may distort feelings/judgements relevant to making of the Will.
When evaluating the four factors, the totality of the evidence presented must be understood in context with medical evidence; and observations of the testator’s behaviour. Importance was also placed on the opinion of the independent solicitor preparing the Will.
3. Presence of fraud
In the case of Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373, the Courts held that a testator must have been found to:
- have the mental capacity to make a Will;
- have knowledge and approval of the contents of the Will; and
- be free from undue influence or the effects of fraud.
The testator must fully understand the contents of the Will and consent to making it. A Will can be contested if it can be shown that the Will was forged, or that the testator was fraudulently induced to signing it.
4. Presence of undue influence
A Will can be contested if the testator was forced, coerced, or in some way persuaded to execute a Will. The person challenging the Will has the burden to prove undue influence, and the Courts would take into consideration a host of factors including the testator’s life and character, familial relationships, medical history, and expert opinions as to the testator’s mental state at the time he executed the Will, and the circumstances in which the Will was made,
5. Failure to provide reasonable maintenance to spouse or children
In accordance with the Inheritance (Family Provision) Act 1966, the deceased’s spouse or children can contest the will on the grounds that they were not reasonably provided for in the Will. This application must be made within 6 months from the date on which representation of the deceased’s estate is first carried out. Upon a successful application, the court may order a reasonable sum of maintenance to be paid to them out of the deceased’s estate.
What is the effect of invalidating a Will?
If a Will is successfully contested, the Will is deemed to be invalid by the Courts. The latest former Will made will be used for the distribution of the estate unless it is also deemed invalid. To reflect the latest intentions of the testator, it is strongly recommended that a new Will be redrafted.
However, if there is no valid Will at the time of the testator’s death, an intestacy arises. The estate Will be distributed according to the Intestate Succession Act 1967.
What is a trust deed?
A trust deed is a legal instrument that creates interest in property. It specifies how assets are managed and distributed among beneficiaries. It establishes the trustee’s responsibilities, the beneficiaries’ rights, and the trust’s purpose. It provides a clear framework for the management of assets and ensures transparency in handling affairs.
A trust deed can be invalid when it fails to satisfy certain formality requirements (e.g. if it is too uncertain), or if it was for a sham purpose. Should a trust deed be invalid for uncertainty, ownership of the property reverts to the settlor (i.e. the original owner). If the settlor is deceased, it will fall under the residuary clause of his will or be subject to intestacy laws.
What is a Deed of Family Arrangement?
A deed of family arrangement is a legal document signed by all members of a family concerned. It serves as an agreement to settle familial disputes like the division of family property, divide family property, confer some benefit upon specific family members in a will, etc.
A deed of family arrangement may be invalidated if one or more of the following can be established:
- Non-disclosure of a material fact;
- Unfair pressure (undue influence, duress and/or misrepresentation); or
- Successful plea of non est factum.