Professional Documents
Culture Documents
NB: The following acronyms: PAA = Probate and Administration Act, EDA = Estate Duty Act, Intestate
Succession Act = ISA, Inheritance (Family Provisions) Act = I(FP)A
Prelim observations
- will contains directions on how testator, after death, will distrib his assets after death
- prereq of making a will –
1. as sol when interviewing client – to probe him on personal matters ie his likes and dislikes, whom he
chooses to give benefits to, whom he x like to leave assets to after death
a. In specie to beneficiaries, or distribution of whole of assets in fractional shares?
2. law req person to leave behind suff money and assets for dependents (inheritance family provision
act)
spouse and children of deceased
If he does not provide for dependants, dependant can easily challenge the will
‘Reasonable provision’: this has to be discussed with the testator
Explain in the will why testator is minded to leave only nominal amount behind for any of his
dependants, if he so chooses: e.g. wife already reasonably provided for by way of fixed interest deposits
→ this will make the will almost impossible to challenge
Drafting Tip
Why the testator is minded to only leave a nominal award for his family?
1st example
- Gifts given to son and/or daughters during his lifetime. He knows that he has provided so much for his
children.
2nd example
- Wife/ husband addicted to gambling. He/she has got their own income.
- Of course, still have to explain why that nominal amount was left (perhaps they’ve got income from a fixed
deposit account or collecting rent from their property).
- Furthermore, she/he has not cured him/herself from the gambling addiction.
• Under CPF Act, have to nominate beneficiary for CPF funds and follow procedure set out therein –
testator may be under the impression that he can will away his CPF assets
CPF Act
Moneys payable on death of member
25. —(1) Any member of the Fund may by a memorandum executed in the prescribed manner nominate a
person or persons to receive in his or their own right such portions of the amount payable on his death out of
the Fund under section 20 (1) or of any shares designated under section 26 (1) as the memorandum shall
indicate.
[31/95]
(2) Where, at the time of the death of a member of the Fund, no person has been nominated by him
under subsection (1), the total amount payable on his death out of the Fund shall be paid to the Public
Trustee for disposal in accordance with —
(a) the Intestate Succession Act (Cap. 146), if the member is not a Muslim at the time of his death; or
(b) section 112 of the Administration of Muslim Law Act (Cap. 3), if the member is a Muslim at the time of
his death.
(3) If any person nominated (other than a widow) is below the age of 18 years at the time of payment of the
amount payable out of the Fund, his portion of the amount payable shall similarly be paid to the Public
Trustee for the benefit of the nominated person.
(4) The receipt of a person or persons nominated under subsection (1) or of the Public Trustee shall be a
discharge to the Board for such portions of the moneys payable out of the Fund on the death of a member as
are payable to the person or persons or the Public Trustee under subsection (2) or (3).
(5) Any nomination made by a member of the Fund under subsection (1) shall be revoked by his marriage,
whether the marriage was contracted before or after 15th May 1980.
Withdrawals
20. —(1) Upon an application for the withdrawal of the sum of money standing to the credit of a member of
the Fund by a person entitled thereto under section 15, the Board may authorise the payment to the applicant
of such sum as the member is entitled to withdraw from the Fund and any interest calculated in accordance
with section 12 (2) up to the date of the authorisation or, if the applicant is a nominee appointed in
accordance with section 25 (1), such portion of the sum as he is nominated to receive.
(2) When any contributions are due to be paid for a member of the Fund in respect of any period ending not
later than the last day of the month next following the date on which the withdrawal of the sum of money
standing to his credit in the Fund is authorised and the contributions are not paid to the Fund until after the
date of authorisation, those contributions may in the discretion of the Board be treated as if they had been
included in the amount standing to the credit of the member at the date of authorisation of withdrawal and
paid to the applicant accordingly.
(3) All applications for withdrawal shall be supported by such evidence as may be prescribed and by such
further evidence as the Board may reasonably require
Contributions to be paid into Fund
12. —(1) All sums recovered or collected on account of contributions to the Fund under this Act shall be
paid into or carried to the Fund in such manner as may be prescribed.
(2) The Board shall cause to be credited to each member of the Fund —
(a) the amount of every contribution paid to the Fund for him; and
(b) interest at the rate declared under section 6 (4) at such intervals as the Board may prescribe and on the
amount standing to his credit in the Fund at such time as the Board may determine.
(6)(4) Interest shall be payable on contributions to the Fund at such rate per annum, not being less than 2
1/2%, as the Board may from time to time declare except that the Board shall not declare a rate of interest
exceeding 2 1/2% per annum except with the approval of the Minister for Finance.
Note CPF (Nomination) Rules: argument is that if strict provisions for nominations not followed, CPF funds
still fall into intestacy.
CPF contributions
- Therefore, we have to ascertain whether the testator has nominated his CPF form.
- Like CPF funds, proceeds of insurance polcies may devolve on benef nominated in policy
- Jt property like bank accts, jt tenancies etc may pass to surviving jt owner automatically on death of ther
jt owner
- Even toug value of assets may have to be aggregated with deceased’s estate for estate duty purposes,
may pass indep of intestacy/ will but remain subj of IFPA claim. Assets where decesd had not benef
interest x form part of aggregate estaqte but fomr sep estate or estates
5. muslim clients –
duty to impress on them tt muslim cannot will away what he owns as he wishes
in all other respects, wills act will apply except for s3 Wills Act
s3 – person may give away assets as he chooses – why is muslim denied this freedom?
• Because Koran prov tt muslim shal only distrib assets as stated in Koran, so cannot
depart form the injunctions set out there.
• Koran states that, simply, person to give his assets after dath in accoradance with
teaching of Koran. Practically, muslim can only will away 1/3 of assets. Remaining
2/3 to be distributed in accordance with what Koran says. The 2/3 will be given to
wife and children of deceased.
• This must follow formula set out in Koran.
o 1/8 – wife
o remaining 7/8 – children in shares where male son gets double that of
female
o discriminatory provision? – holy book. Women protected lot back in
prophet mohamed’s time
• 1/3 of estate – free to dispose of it. But with this rider, muslim cannot give more to
the Islamic heirs by giving that 1/3 which he is free to dispose of to them ie canot
give daughters more than supposed to
ie – I appt so and so as my executor. I give my estate in accordance with syriah law. with this,
entire estate gets distributed in accordance with syriah law as set out above.
What if muslim name but converted to Christianity? – Islamic law still applicable. He
has not changed his name to Christian name. even if he ate non halal food, did not go to
mosques etc
• He must have taken steps to state in clear categorical terms tt no longer a
muslim
• Make a statutory declaration
• Also go to deed poll – change name
• Also send to MUIS (muslim relig council), ask for receipt acknowlegmetn of
deed declaration
• Then free of oblig under islam law as to how to distrib assets
1. Marriage
S 13 Wills Act
Every will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise
of a power of appointment, when the real or personal estate thereby appointed would not in default of such
appointment pass to his or her heir, executor or administrator or the person entitled under the Intestate
Succession Act.
Marriage revokes a will – s.13 Wills Act (WA). But if will is made in anticipation of marriage,
subsequent marriage does not revoke the will
So just need to mention in will, for e.g., that “I intend to be married in 3 months”
Blind testators
Either have him mark at the foot of the will; or
Have friend or family member sign on his behalf or on his instructions
Note:
Important to record what was done in the will itself by making endorsement or note next
to the signature to the effect that ‘the contents of the will were explained to the testator, which he
understood, and he directed that X sign on his behalf.’
Illiterate testators
If signature on the will is in a language other than English, the assumption is that the testator does not
understand English
Therefore must add note that testator read and understood contents and chose to sign in a language other
than English
Note O 71, 72 on non-contentious and contentious probate proceedings respectively.
Blind
Illiterate
- Some testator cannot speak English but they can understand Mandarin (or some dialect)
- Sometimes, they can understand English but they sign in Chinese!
- If the will is signed in Chinese, please a note that the testator CHOOSES to write/sign in Chinese.
- It will save a great deal of headache when signing or when it comes to having proved the will.
- But the discretion is entirely theirs.
- If there is a query, must submit affidavit of the attesting witness.
- Those who don’t understand eng and don’t sign in eng – contents must be explained.
o Blind man? Must be endorsed in will that contents of will were read over and expained
to testator before he placed his mark on the will.
o Paralysed and cant lift hand to sign? Get him to direct in will that at his request, will was
signed on his behalf by his good friend eg Tay, on the durat as instructed by the testator.
Mode of execution.
6. —(1) No will shall be valid unless it is in writing and executed in the manner mentioned in subsection (2).
(2) Every will shall be signed at the foot or end thereof by the testator, or by some other person in his
presence and by his direction, and the signature shall be made or acknowledged by the testator as the
signature to his will or codicil in the presence of two or more witnesses present at the same time, and those
witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.
(3) Every will shall, as far only as regards the position of the signature of the testator, or of the person
signing for him as mentioned in subsection (2), be deemed to be valid under this section if the signature shall
be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be
apparent on the face of the will that the testator intended to give effect by such his signature to the writing
signed as his will; and no such will shall be affected by the circumstance —
21/38.
(a) that the signature shall not follow or be immediately after the foot or end of the will;
(b) that a blank space shall intervene between the concluding word of the will and the signature;
(c) that the signature shall be placed among the words of the testimonium clause or of the clause of
attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space
intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing
witnesses;
(d) that the signature shall be on a side or page or other portion of the paper or papers containing the will
whereon no clause or paragraph or disposing part of the will shall be written above the signature; or
(e) that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other
portion of the same paper on which the will is written to contain the signature.
(4) The enumeration of the circumstances under subsection (3) shall not restrict the generality of that
subsection; but no signature under this Act shall be operative to give effect to any disposition or direction
which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after
the signature shall be made
2. Proviso to our s 13 which extends rules on wills made in contemplation of marriage to polygamous
marriages
3. Note that Singapore courts do not have the power to rectify clerical errors in a will
- absence in sg of court’s power to rectify clerical errors in will – given to eng courts by admin of justice
act 1982 – so care must be exercised
(2) Any disqualification to which a bankrupt is subject under this section shall cease when —
(a) the bankruptcy order against him is annulled or rescinded; or
(b) he is discharged under Part VIII.
(3) Any person who acts as a trustee or personal representative while he is disqualified by virtue of
subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000
or to imprisonment for a term not exceeding 12 months or to both.
iv. There is no need to appoint more than 1
v. But if there are issues with “minority interests”, then need 2 administrators
c. age – 21
i. A will can be made by any person over 21, unless on active combat duty
d. proper execution at foot of will
i. to be signed by testator
ii. wills act x say must sign every pg of will but in practice must ensure that every
pg signed!!!! A lot of perverse pple in family who will not want will as drawn to
be proved and assets distributed on basis of testator’s own wishes. The may
replace the pages in the middle with sth else!
iii. Sol need not sign with him though you may
e. attestation by 2 witnesses
i. must sign at same time as testator
ii. who qualifies – anyone above 21
iii. but with proviso that attesting witness shld not be a beneficiary of estate nor
shld the attesting witness be a spouse of the beneficiary
iv. eg will is valid but gift to nephew is not valid where nephew was an attesting
witness ie that gift automatically lapses. Ie attesting witness who is beneficiary
or spouse of the beniciary wil not be entitled to receive the gift.
f. compliance with law of place of execution (s 4,5,6 of wills act)
i. for sg – see above: apptment of executor etc
ii. diff countries diff laws
iii. section 5 wills act recog as valid a will executed in accordance with reqts of the
law in the country where it was executed
iv. can also make will according to domicile of the testator
v. when flying, law of domicile applies! – Singaporean, Singapore will apply
vi. but place of registration of aircraft also applies
vii. see section 5
g. Need to ensure that the correct name of the testator is recorded
Name as it appears in I/C: National Registration Act
Sometimes names are rendered in shorter forms → at initial interview,
get variations of your client’s name
Find out variations of name from personal representatives
Sometimes, his fixed deposit account might have a variation and etc.
Standard clauses
- First clause - Declaration of intention to make will. Nec to say that this is the last will; there may be
other wills! will is always ambulatory and x crystallize until death. Therefore state in will tt this is the
last will and testatament
- Appting executor and trustee – very impt – if not appted, then administered as if it intestate, prvn in will
effective but instead of applying for grant of letters of probate (FOR WILL), will apply for grants of
letters of administration (intestate cases). Therefore must mention who executors and trustees are going
to be.
o Contingency arrangement – if executor who is appted not able to accept office then appt
substitute (impt in case the executor and trustee also dies)
o Must be above age of 21
o Can appt infant, but cannot apply for letters of grant of probate until reaches 21 – and can only
apply with permission of guardian
o Guardians to apply
o ‘Durante minore…’ During pendency of adulthood of the infant executor -
o Executor and trustee shld not be a bankrupt – section 130 BA x allow bankrupts to be appted
as executors and trustees of wills
Appointment of executor
‘I appoint X of [address] to be the sole executor and trustee of this my will.’
• At least one executor must be appointed, otherwise the testator dies intestate → apply for Letters of
Administration with will annexed: administrator appointed under such circumstances = ‘administrator
with the will annexed’ or administrator cum testamento annexo (cta)
• If application for administration cta has to be made, then court usually requires applicant to furnish
administration bond → additional inconvenience and considerable nuisance unless all creditors and
beneficiaries can and do consent to dispensation of administration bond
• Note that while more than one executor may be appointed, the appointment of too many executors may
cause difficulty in the administration of the estate
• Trustee point?
Appointment of guardian
‘I appoint my [state relationship] Y of Singapore to be the guardian of my infant children.’
• This should be done if the testator has minor children
• As the testator may only wish to appoint a guardian if spouse predeceases, use a clause such as the
following: ‘If my wife does not survive me by thirty days I appoint my [state relationship] Y of [place of
domicile] to be the guardian of my infant children.’
Residuary gifts
‘To hold the rest and residue of my estate upon trust for such of my friends, X and Y as shall be living at the
date of my death, and if both shall then be living, in equal shares as tenants in common.’
• The residuary clause is as important as the clause appointing the executor / administrator
• If testator acquires additional assets post-will, the residuary clause settles distribution of those assets in
equal shares
• If there is no residuary clause, the assets fall into residue and become distributable under intestacy law
• Best to avoid this situation since raison d’etre behind making a will is to ensure client’s estate
distributed according to his wishes
- Clause 4(f) – even if this clasue not included, section 26 wills act provides that where person dies,
leaving a will, and in tt will he has provided for his children certain share in his estate, if any of the
children predeceases him, the gift to tt child shall not lapse but evolve to that child’s children/issues.
o ‘per stirpes’ – stirpes means root. Here has wife and children. If son dies first, leaving only
wife and other child, then assuming son has 2 issues, share will go to children per stirpes ie
will take father’s share (1/4, ¼) = Per stirpes – to take according to root. VS per capita – both
grandchildren will take equally with the aunt of the two grandchildren.
- “Testimonium” clause/ concluding clause
o Testator has accepted terms of the will
o This is the testator’s acknowledgement that he acknowledges the terms of the will.
- durat (?)/Attestation clause – testator signs and two attesting witnesses sign
o All 3 must be present at same time and sign at same time
o If did not sign at same time, will is invalid and no provn in will will apply – ineffective
o Does the Witness Need to Read and Understand the Will? No.
- Anybody who is the beneficiary or the spouses if the beneficiaries should not be
witnesses
- This is because the gift to them might be invalid.
- If there are, they do not get that legacy.
Attestation clause
• The witnesses do not have to read the will and understand what the testator is doing
• **Important: beneficiary under the will and his/her spouse cannot witness the will → while the will is
not rendered invalid, the gift to them will be [cf. Ross v Caunters]
• BUT if beneficiary subsequently becomes spouse of witness, gift will not fail:
• Will not to be invalidated by reason of incompetency of attesting witness.
• If any person who attests the execution of a will shall, at the time of the execution thereof or at any time
afterwards, be incompetent to be admitted a witness to prove the execution thereof, the will shall not on
that account be invalid.
• Executor not incompetent to be witness.
s12. No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness
to prove the execution of the will or to prove the validity or invalidity thereof.
Benef and their spouses should not be attesting W – s.10. This does not invalidate the will but will
invalidate the legacy given to the Benfy. A solicitor who fails to warn the client of this or fails to notice
such a mistake may be liable to the benfy for negligence.1
But if there are 2 independent Ws besides the Benfy who have signed as attesting Ws, the will is
valid and the benfy’s attestation will be disregarded for the purposes of S.10(1). In that situation
the benfy would still be entitled to his legacy/entitlement – S. 10(3)
Note s 5 Wills Act → the words used in the will should be chosen to show that this section has been
complied with, even though no special form of attestation required by Singapore law:
Contents of wills
1
Ross v. Caunters (1980) Ch. 297
(c) that he knows what he wants to do
(d) that what you write for him in the will says that which he wants to do
(e) that what the client wants will be done
Careless drafting of a will lays solicitor open to suit in professional negligence: Ross v Caunters (1980) [HC
Chancery Div]
Facts:
- Solicitors prepared a will for a testator in accordance with his instructions
- Did not supervise its execution, but sent it out to the testator for his signing
- The solicitors did not:
(i) warn testator that care must be taken to ensure that witness not beneficiary or spouse of
beneficiary
(ii) check that point on receiving the executed will back from the testator
(iii) observe that an attesting witness was the plaintiff’s husband
(iv) appreciate that the disposition in the plaintiff’s favour was thereby nullified
Held:
A solicitor who is careless in drafting, or seeing to the execution of a will may be liable in negligence to a
person excluded by that solicitor’s negligence from taking a share of the estate.
Revocation of wills
• Include the revocation clause even if there is no previous will, otherwise executor may be called upon to
prove there is no prior will if no-one can remember whether it is the first and only will or not
• Whether prior wills need to be destroyed: while destruction may be evidence of animus revocandi
(intention to revoke), prior wills may sometimes be useful in ascertaining the testator’s desires /
intentions
• Always make sure that revoked prior wills cannot be put forward for probate unchallenged
• Any appointment, provision or disposition contained in an earlier will which the testator wishes to
continue, should preferably be provided for by specifically restating it in the new will. Otherwise, make
specific provision in new will for that part of the old will to remain in force.
Alteration of wills
Alterations made post-execution of will necessitate re-execution of the will:
Effect of obliteration, interlineation or alteration.
16. —(1) No obliteration, interlineation or other alteration made in any will after the execution thereof shall
be valid or have any effect except so far as the words or effect of the will before such alteration shall not be
apparent, unless the alteration shall be executed in the like manner as by this Act is required for the
execution of the will.
(2) A will referred to in subsection (1), with such alteration as part thereof, shall be deemed to be duly
executed if the signature of the testator and the subscription of the witnesses be made in the margin or on
some other part of the will opposite or near to the alteration or at the foot or end of or opposite to a
memorandum referring to the alteration and written at the end or some other part of the will.
Alterations – no need to re-type entire will, amendment can be made in pen but T and all Ws to initial
the change –S. 16(2) WA
Additional matters
- Some testators like to tie up the estate because don’t want estate to be squandered
- May want to give income fr estate for period of time
- Revamp of law on accumulations and perpetuities
o Accumulation of income – section 31 Civil law act – period for accumulatig income is limited
to max of 21 yrs
o Section 32 civil law act – capital assets can be kept for period up to 100 yrs or less than 100
yrs as testator may stipulate (old cl rule against perpetuities - life and lives in being plus 21
yrs)
- Once made, will can still be removed
o Revocation must be expressly declared and in form of subseq will or where red line crossed
over will with the word ‘cancelled’
o See section 16 wills act
- Quarrels among family members that prior will is effective and not subseq will
o Can be said tt subseq wll revoked by deceased
o So impt that where there is revocation, ask client to prepare new will – and say that all prev
wills hereby revoked and this in my last will
o Subsequent marriage revokes a will section 13 wills act
1. Spouses –
2. Issues ie children
3. Parents
4. Brothers and Sisters
5. Issues of brothers and sisters
6. Grandparents
7. Uncles and Aunts – note cousins are not entitled!!!
If person makes will and rovides for child but he predeceases the testator, does the predeceased’s child
lapse?
See s26 wills act – such gift to child who happesn to die before the testate DOES NOT lapse
S26 saves this gift provided that predeceased child left issue ie his own children. But his
wife does NOT get a share
Gifts to children or other issue who leave issue living at testator’s death not to lapse.
26. Where any person being a child or other issue of the testator to whom any real or personal estate shall be
devised or bequeathed for any estate or interest not determinable at or before the death of that person shall
die in the lifetime of the testator leaving issue, and any such issue of that person shall be living at the time of
the death of the testator, that devise or bequest shall not lapse, but shall take effect as if the death of that
person had happened immediately after the death of the testator, unless a contrary intention shall appear by
the will.
• ISA does not define “spouse” (essential for the application of the Section 7 distribution rules) but
Section 97 of the Women’s Charter specifically excludes a spouse who has been judicially separated.
• However, lawful widows of polygamous marriages (i.e. marriages not void under Section 5(2) of the
Women’s Charter) are entitled to share equally. (Section 8 of the ISA)
Rule 1
If an intestate dies leaving a surviving spouse, no issue and no parent, the spouse shall be entitled to the
whole of the estate.
Rule 2
If an intestate dies leaving a surviving spouse and issue, the spouse shall be entitled to one-half of the estate.
Rule 3
Subject to the rights of the surviving spouse, if any, the estate (both as to the undistributed portion and the
reversionary interest) of an intestate who leaves issue shall be distributed by equal portions per stirpes to and
amongst the children of the person dying intestate and such persons as legally represent those children, in
case any of those children be then dead.
Proviso No. (1) — The persons who legally represent the children of an intestate are their descendants and
not their next-of-kin.
Proviso No. (2) — Descendants of the intestate to the remotest degree stand in the place of their parent or
other ancestor, and take according to their stocks the share, which he or she would have taken.
Rule 4
If an intestate dies leaving a surviving spouse and no issue but a parent or parents, the spouse shall be
entitled to one-half of the estate and the parent or parents to the other half of the estate.
Rule 5
If there are no descendants the parent or parents of the intestate shall take the estate, in equal portions if there
be two parents, subject to the rights of the surviving spouse (if any) as provided in rule 4.
Rule 6
If there are no surviving spouse, descendants or parents, the brothers and sisters and children of deceased
brothers or sisters of the intestate shall share the estate in equal portions between the brothers and sisters and
the children of any deceased brother or sister shall take according to their stocks the share which he or she
would have taken.
Rule 7
If there are no surviving spouse, descendants, parents, brothers and sisters or children of such brothers and
sisters but grandparents of the intestate the grandparents shall take the whole of the estate in equal portions.
Rule 8
If there are no surviving spouse, descendants, parents, brothers and sisters or their children or grandparents
but uncles and aunts of the intestate the uncles and aunts shall take the whole of the estate in equal portions.
Rule 9
In default of distribution under the foregoing rules the Government shall be entitled to the whole of the
estate.
Important qn to ask also – whether intestate left spouse/spouses and/or issue including descendants or
parents?
- Distant kin remote possibility but have to be traced in cases of testacy
o To avoid this and other uncertainties, sol shld advise client ot make wil exclude all possib of
intestacy
INSURANCE
Under the Intestate Succession Act, the deceased’s estate will be distributed to persons in the
following order:
(1) Spouses
(2) Issues
(3) Parents
(4) Brothers and Sisters
(5) Issues of brothers and sisters
(6) Grandparents
(7) Uncles and Aunts
The problem with a person dying intestate and having no one to administer his estate is avoided by
s 61 Insurance Act which enables insurance policies to be properly paid out to the deceased’s spouse
and children before the grant of letters of administration.
Payment of life policy and personal accident claims without probate, etc.
61. —(1) In any case where the policy owner of any life policy or personal accident policy of an insurer
dies, and the policy moneys are payable thereunder on his death, the insurer may make payment to any
proper claimant a prescribed amount of the policy moneys of all such policies issued by the insurer on
the deceased’s life without the production of any probate or letters of administration; and the insurer
shall be discharged from all liability in respect of the amount paid.
(2) If, in any case as is mentioned in subsection (1), estate duty is payable in Singapore on any such
policy moneys as are there mentioned, the insurer may, notwithstanding section 44 (2) of the Estate
Duty Act (Cap. 96), pay to any proper claimant a prescribed amount of the policy moneys of all such
policies issued by the insurer, without the policy moneys having been included in such a schedule or
certificate as is mentioned in that subsection.
(3) Before making any payment under subsection (2), the insurer shall give notice by registered post to
the Commissioner of Estate Duties with such particulars as the Commissioner may require.
(4) Subsection (2) shall apply in relation to policy moneys under policies of which the deceased was not
the policy owner at his death as it applies in relation to any such policy moneys as are mentioned in
subsection (1).
(5) Where an amount is paid under subsection (2) on account of any policy moneys, the insurer may,
before payment of the balance of such policy moneys to any proper claimant, apply the whole or part of
the policy moneys to pay any unpaid estate duty payable on the death of the insured.
The insurance company will send a notice to the Commissioner of Estate Duties as required under s
61(3) IA at the same time as it sends the money out to the beneficiaries.
Letters of representation
- Letters of probate
o Term used for grant where deceased died testate
- Letters of admiun
o Deceased died intestate
o If will x name executor, then you shld apply for grants of letter of admin with will
annexed (cum testamento annexo)
Personal representatives
- Executor (testate) and administrator (intestate)
Comments
Section 37(1) of the Act provides that where a person dies intestate in his movable and immovable property
until administration is granted shall vest in the Chief Justice and Section 37(2) provides that on the making
of an order for a grant in administration, all such property shall vest in the administrator.
2. but he acd nth under issue of letters of admin - An administrator may not even commence proceedings
until he has obtained the grant of letters of administration. Accordingly, ‘if a plaintiff brings an action in a
representative capacity as administratrix, then that action is a nullity if she was not at that date by law
administratrix with a proper grant. Even if she obtains a grant within a week, a month or a year afterwards it
does not relate back. The writ is a nullity from the beginning.’
(2) An executor derived his title from the will, and spoke from the will, and not the grant of probate.
He could therefore act and commence an action at any time after the testator’s death, but he could not
maintain the action and proceed beyond the stage at which it became necessary to prove his title
because probate was the only proof of his title. The stage at which the executor has to prove his title is the
hearing at which a formal order will be made
(3) Where the person who claimed as executor had not obtained probate, the court could adjourn
the proceedings and give a reasonable time to obtain and produce the grant of probate for the
inspection of the court and other parties.
Judgement:
2 Where the owner of any property has made a testamentary disposition, namely, a will, and has named
an executor, though it remains ambulatory while he is alive, upon his death it becomes a declaration of his
intentions as to how his properties are to be dealt with. More importantly it vests his properties in his
executors upon his death. In respect of immovable properties the will, so to speak, is a specie of conveyance.
In the result, the executor derives his authority and title from the will and is entitled to assert his power
according to the terms and tenor of the will. There is no hiatus in the title. Title is kept alive and continuous
by the act of the owner, namely, the will-maker.
3 The concept of continuity of title applies even when the owner dies without a will. The office of an
administrator derives its status and title entirely from the grant of letters of administration and only from the
time of its issue with the imprint of the seal of the court. In the case of a grant of letters of administration, in
reality, there is a hiatus between the death of the person whose estate the administrator will represent and the
issue of the grant. Until 1997, there was a legal fiction created by s 37 of the Probate and Administration Act
(Cap 251) as it was before 1 October 1997: “Where a person dies intestate his movable and immovable
property until administration is granted in respect thereof shall vest in the Chief Justice in the same manner
and to the same extent as it vests in the Probate Judge in England”. It was a fiction because the Chief Justice
had no duties and his supposed status and title evanesced the moment the grant was issued. From
1 October 1997, when a person dies intestate, his real and personal estate vests in the Public Trustee.
however, the vesting by itself does not confer or impose on him any power, duty, right, equity, obligation or
liability in respect of the estate. So the vesting of title on the Public Trustee is a fiction to maintain
continuous title. The moment a grant of letters of administration is issued, title relates back to the time of
death of the owner of the property and totally eclipses the status and title of the Public Trustee. See s 37 of
the Probate and Administration Act (Cap 251, 1985 Rev Ed, as amended by Act 7 of 1997). Thus the
continuation and transfer of title is the result of operation of law and not an act of the owner.
4 In consequence of what has been stated above, an executor acquires recognition of his same powers
and status from the moment of the death of the testator even though he has not obtained probate. On the
other hand the administrator acquires nothing until the issue of the letters of administration. In other words,
an executor appointed by the will is entitled to describe himself so, the moment the will acquires force and
effect upon the death of its maker. On the other hand, an administrator may call himself an administrator
only when the grant of letters of administration is issued. “Probate” in this context means “a grant under the
seal of the court issuing the same”. “Letters of administration” means “a grant under the seal of the court
issuing the same, authorising the person or persons therein named to administer an intestate’s estate in
accordance with law”. See s 2 of the Probate and Administration Act (Cap 251). Furthermore, the grant here
means an actual grant impressed with the seal of the court with the estate duty schedule attached to it. A
grant so issued being a document emanating from the court proves itself. See s 93 of the Evidence Act
(Cap 97, 1997 Rev Ed) Exception 2. So the courts, created for the sole purpose of upholding the law, more
than any other institution, dispense with the requirement of the production of the grant. Additionally it is
necessary to ensure that the provisions of the Estate Duty Act (Cap 96) are not bypassed, for s 42 of the
Estate Duty Act provides that probate and letters of administration shall not be issued until estate duty is
paid or postponement is granted.
- Must read two cases for grasp of authority and title of person who is executor (fr will) and person
merely administrator (only fr grant)
Tacplas Property Services Pte Ltd v Lee Peter Michael (administrator of the estate of Lee Chong Miow,
deceased) [2000] 1 SLR 637
- Traces history in egland and sg of powers of personal reps
- Case impt on whether action of 1 executor can bind others and whether same for adminidstrators.
- For executors – 1 can act on behalf of estate and bind the others
- For administrators – they have to act collectively. the act of one administrator is not sufficient to
bind other administatrators
- Case involved purchae by tacplas of land belonging to estate. Two siblings – Christina loke and brother.
Administrators of estate who sold land to tacplas. In anticipation of sale, tacplas paid compensation to
tenants to get them out of property. Then loke entered into agreement toformalise the same. Martin lee
brother did not sign it because bedridden. His son then became committee of their father who was
paralysed. He challenged the deal that aunt had entered into. In law, his arg was valid.
- But doctrine of relation back – even if adminstarotr done sth improper, court can sanction this
transaction because for benefit of estate. So takes back to time when initial agreement carred out
- So occur validated the sale because peter lee was slow, therefore estopped fr denying tt agreement to
sell land to tacplas was valid
Facts
The deceased died intestate in 1969. His son Martin petitioned for letters of administration to be granted to
himself and his sister, Christina. The order granting the letters was made but the grant was never extracted.
After, Martin suffered a severe stroke and became incapable of managing his own affairs. Martin’s son, the
respondent in this case, and the respondent’s wife were appointed as the Committee of Martin’s Person and
Estate. Christina and the respondent then applied to court to revoke the original grant of letters of
administration and to appoint them as administrators of the deceased’s estate. The application was granted
on 28 July 1995 and the grant was extracted.
In the meantime, before the grant was extracted, Christina had, as “a personal representative” of the
deceased, purportedly entered into an agreement (“the agreement”) with the appellants for the sale of
property owned by the deceased. At the time of the agreement, the property was subject to adverse
possession claims. None of these claims succeeded and in order to prevent any further trespass or
unauthorised occupation, Christina permitted the appellants to take possession of the property, after which
they maintained the property at their own expense for almost four years from June 1998. The respondent was
aware of the expenditure incurred by the appellants and did nothing to stop the appellants from doing so.
Following the extraction of the grant of letters of administration, the appellants’ solicitors made several
requests that an application be made to the court to obtain the requisite sanction for the sale of the property
to the appellants. However, no satisfactory response was forthcoming from Christina or the respondent. The
respondent then commenced OS 611/98 against the appellants for a declaration on the validity or otherwise
of the agreement. The respondent contended that the agreement was not binding on the estate as Christina
lacked authority to enter into the agreement alone without the consent of the co-administrator, Martin, who
was at the time incompetent. The appellants’ defence was that Christina had acted with authority and in the
alternative, the respondent was estopped from asserting that the agreement was not binding on the estate.
The judge found in favour of the respondent. The appellants appealed to the Court of Appeal.
The broad issues on appeal were: firstly, whether administrators had joint and several authority to deal with
the assets of the deceased such that the act of one of them was binding on the other and the estate; and
secondly, whether the respondent was estopped from denying that the agreement was valid and binding on
the estate.
Lee Han Tiong and others v Tay Yok Swee [1997] 1 SLR 289
Facts
This was an appeal from an order of the deputy registrar that the claim on behalf of the estate of Goh Seong
Pek deceased be struck out. The questions before the court was whether an executor could bring an action
before a grant of probate of the will by which he was appointed an executor was issued; and whether he
could do so without joining the other executors.
Held, allowing the defendants’ claim for set-off:
(1) It was clear law that an executor derived his title and authority from the will of his testator and not
from any grant of probate. The principle that an administrator could not bring an action until the grant of
letters of administration had been issued did not apply to an executor.
(2) Section 37 of the Probate and Administration Act (Cap 251), which dealt with the vesting of property
of a person dying intestate, was consistent with the position at law that the property of a deceased who died
leaving a will vested in his executor upon death. The absence of a provision in respect of an executor
corresponding to s 19 of the Limitation Act (Cap 163), which provided that the administrator be deemed to
claim as if there had been no interval of time between the death and the grant of the letters of administration,
was also consistent with the position that an executor was competent to bring an action as executor before
probate of the will by which he was appointed.
(3) Unless the will provided otherwise, each executor represented the testator. Any executor could
settle an account with a person accountable to the estate and could release a debt and such settlement
and release would be binding on the others. All executors were necessary and proper parties and
ought to be joined either as plaintiffs or if they did not consent then as defendants