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Deathbed Wills & Wills
What is a will?
A will is a legal instrument in which a person, the testator, specifies the method to be applied in the management and distribution of his estate as well as in carrying out his or her wishes after death. In Singapore, wills are governed by the Wills Act.
What is a deathbed will?
A deathbed will is a legal instrument created and executed when the testator is terminally ill, hospitalised and is facing imminent death.
What to include in a (deathbed) will?
A testator should have a list of all property, possessions and money and all liabilities. He or she should include the beneficiaries who will inherit the estate and how much they will receive, the executors who will handle the estate after death, a revocation clause that will revoke all previous wills and codicils as well as a residuary clause that will handle bequests which are void due to death of a beneficiary.
What happens if you don’t leave a (deathbed) will?
If a will has not been written up or is declared invalid, the person will have died intestate, resulting in the distribution of the assets according to the law of the country in which he or she was residing at the time of his or her death. In Singapore, these rules are outlined in section 7 of the Intestate Succession Act.
Survivor | Absent | Entitlement |
Spouse | Parent and issue (Lineal descendants such as children, grandchildren) | A spouse is entitled to the whole of the estate |
Spouse and issue | A spouse is entitled to one-half of the estate, the issue gets the other half in equal portions | |
Issue | Spouse | Issue entitled to equal portions of the estate; grandchildren to get their parent’s share if their parent is already dead |
Spouse and parent/s | Issue | A spouse is entitled to one-half of the estate, parent/s get the other half of the estate in equal portions |
Parent/s | Spouse and issue | Parent/s entitled to the whole of the estate in equal portions |
Brothers and sisters as well as children of deceased brothers or sisters | Spouse, issue and parents | Brothers and sisters entitled to the whole of the estate in equal portions; children of deceased brother or sister to get their parent’s share in equal portions |
Grandparents | Spouse, issue, parents, brothers and sisters or children of such brothers and sisters | Grandparents entitled to the whole of the estate in equal portions |
Uncles and aunts | Spouse, issue, parents, brothers and sisters or their children and grandparents | Uncles and aunts entitled to the whole of the estate in equal portions |
None | Spouse, issue, parents, brothers and sisters or their children, grandparents, uncles and aunts | Government entitled to the whole of the estate |
It is to be noted that the Act does not apply to the estate of any Muslims. In the case of any Muslim person residing in Singapore dying intestate, the estate shall be distributed according to Muslim law (faraid) and administered by the Syariah Court.
How can a (deathbed) will be valid?
A (deathbed) will is valid if it is executed with the formalities required by the country in which the person resided. In Singapore, this means that the will must be in writing, signed at the foot by the testator or by a person in the presence and direction of the testator, witnessed in the presence of at least two witnesses and also signed by the witnesses in the presence of the testator. It is also valid if approved by a medical practitioner who is satisfied of the testamentary capacity and understanding of the testator and who has recorded his findings in a memo.
What is testamentary capacity?
To have testamentary capacity, the testator must understand the nature of making a will and its effects, have a general idea of the extent of the estate he or she is disposing of, have knowledge of the persons for whom he or she would usually be expected to provide (even if he or she chooses not to) and must be free from any delusion of the mind that would influence him or her to make bequests in the will that he or she would not otherwise have included.
How can a (deathbed) will be challenged?
A deathbed will, as mentioned above, is prepared close to death. Although it is a type of will that is valid and legally binding, it is prone to errors for several reasons.
- The rushed and hastily drawn will fail to properly distribute the assets as the testator intended.
- The will may be invalidated if it does not meet a certain legal requirement such as having the requisite number of signatures from witnesses who are not related to the testator and do not seek to benefit from the will.
- The testator may fail to appoint executors to administer his or her estate in accordance with the instructions of the will.
Disappointed beneficiaries, who feel that they have been unfairly overlooked, will contend that the testator lacked sufficient mental and decision-making capacity or that the will was subjected to undue influence, mistake or fraud.
How to prevent successful challenges to a (deathbed) will?
It would be helpful to keep statements from the witnesses present at the time. These statements can include whether the testator was fully aware of what he or she was doing, whether anyone appeared to be controlling or manipulating the testator and whether the testator had an idea of what he or she possessed and who his or her beneficiaries will be. This is because after a certain amount of time had passed, witnesses may not be able to remember the events clearly and may give conflicting and unreliable accounts.
Furthermore, you should ensure that your will is properly drafted and executed, video record the will signing, have a doctor certify testamentary capacity in the testator and remove the appearance of undue influence by having no family members present at the discussion and signing of the will. These will likely prevent a will contest from succeeding.
How can we help?
Writing a will, be it at the last minute, allows you to have your assets divided up according to your wishes, saving a lot of unnecessary expense, distress and hassle for your family after your death.
At Lions Chambers LLC, we have an experienced team of lawyers who are able to guide you through the drafting process, complex state laws and complicated circumstances. We are able to able to help prevent challenges to your (deathbed) will, allowing you and your family to have peace of mind.