Contesting a Will in Singapore

Understanding Wills and Contesting Them in Singapore

A will is a legal document created by a testator (the individual making the will) that outlines how their estate will be managed and distributed after their death. A will also designates an executor tasked with ensuring that the testator’s instructions are carried out. Essentially, a will dictates the distribution of the testator’s estate upon their passing.

An estate comprises all the assets, liabilities, and properties owned by the deceased at the time of their death.

In Singapore, the courts generally uphold a will if it has been properly and validly made, even if some family members feel the distribution is unfair. For instance, family members who were excluded from the will and received no inheritance cannot have the will set aside merely because they are dissatisfied. The courts will respect the testator’s expressed wishes, provided the will complies with legal requirements.

Grounds for Contesting a Will in Singapore

Despite the general enforceability of wills, there are circumstances under which a will can be contested.

Who Can Contest a Will?

Individuals with an interest in the will or those who were dependent on the testator may challenge it. This includes spouses and dependents who relied financially on the deceased or had a legal claim to their support. A beneficiary might contest a will if they believe it does not accurately reflect the testator’s intentions or if it fails to provide sufficient maintenance for dependents.

Grounds on contesting a will in Singapore

Contesting a will involves disputing its terms or validity, arguing that the distribution of the estate should differ from what is specified in the will.

Common reasons for contesting a will include:

• A belief that the will does not represent the testator’s true wishes.
• Inadequate provision for dependents who relied on the deceased for financial support.
• Questions regarding the validity of the will, such as concerns about the testator’s mental capacity or allegations of undue influence or fraud

These sounds will be explained further below.

(1) The will is invalid (unsigned, not properly witnessed)

A will that does not follow the formalities stipulated under the Wills Act is invalid.  The requirements of a valid will are:

• It must be in writing.
• The testator must be aged 21 years old or older.
• The testator must sign the will.
• At least two witnesses must witness the testator’s signature. The witnesses must also sign the will in the presence of the testator.
• The two witnesses cannot be beneficiaries under the will. The beneficiary’s spouse also cannot be a witness.

The legal requirements of a will are why it is essential to use an experienced wills lawyer to prepare your will. If you make your will yourself or have someone not qualified to draft your will, your will may be invalid if the formal requirements are not met.

The result of overlooking these legal requirements means the distribution of your estate is under the intestacy rules, which is different from your wishes.

(2) The will was fraudulently made

There are several ways in which a testator, or their estate, can fall victim to a fraudulent will.

Someone may mislead the testator into signing a will they have created, whereby the testator believes to have been signing a different document.

Someone may forge a person’s signature on a will they have created. Or someone may alter a will that the testator created.

(3) The testator was of unsound mind

A person interested in the will may claim that the testator did not have the required mental capacity when creating the will.

For example, a person will lack the capacity to make a will if they have dementia. Dementia is a medical condition where a person has an impaired ability to remember, think, or make decisions in their day-to-day life.

It does not matter whether the impairment is permanent or temporary. Therefore, someone under the influence of drugs or alcohol will not have the capacity to make a will.

(4) The will was made under undue influence

A will can be challenged based on undue influence, which involves establishing that the testator was forced or otherwise unduly persuaded to make a will that does not reflect their true wishes or intentions.  This is one of the more common grounds to challenge a will.

Proving undue influence can be difficult. The burden of proving undue influence is on the person challenging the will. They must show, on the balance of probabilities, that the testator’s mind was unduly influenced by another person, such that there was no voluntary approval of the will.

Procedure for contesting a will

There are two routes to contesting a will, depending on the status of the deceased’s estate.

If you are contesting a will before Grant of Probate, you must file a court caveat declaring your interest in the estate. Filing a caveat will have the effect of the court notifying you of an issued grant. Distribution of the estate will be on hold whilst the court considers your challenge to the will.

If you are contesteing the will after the court has issued a Grant of Probate, you must contest the will within six months from the date the court issued the Grant of Probate. The court has the discretion to extend this period in certain circumstances, such as upon discovering an additional will or codicil that substantially changes the distribution of an estate. There may be other compelling grounds to make an application out of time, but you must put forward your substantive reasons for doing so out of time.

You must start a probate action to commence the contesting procedure. The probate action will commence by a writ issued by the Registry of the Family Justice Courts.

In the writ, you must describe the grounds on which you are contesting the will and explain why you believe these grounds have been met or proven.

Then, the court will arrange a hearing to decide on your claims against the will.

If the court has issued a grant of probate already, you can obtain a writ only after filing a citation in the form of an affidavit against the person to whom the grant was issued.

If the contested will claim is successful, the court will instruct the return of assets to the executor for redistribution.

If the executor still holds the assets, they will distribute them under intestacy rules.

Effect of contesting a will

If you successfully challenge the validity of a will, the distribution of the deceased’s estate will be according to the Intestate Succession Act instead of their will or it may be distributed accoridng to an earlier valid will.

If the will does not adequately provide for dependents

Singapore law recognises the following people are dependents of a testator:

• A spouse.
• A daughter who has not been married and cannot maintain herself due to a physical or mental disability.
• An infant son.
• A son who cannot maintain himself due to a physical or mental disability.

If the court believes the will does not adequately provide for the dependant(s) (e.g., by not being named in the will or their share is insufficient) of the deceased, the court may make an order to pay a lump sum or periodic maintenance to be payable to the dependents.

You may apply for maintenance six months after the grant of probate is issued.

Maintenance may be a better alternative than contesting a will, as it can be a cheaper, less stressful process and less likely to strain your relationship with other beneficiaries.

How We Can Assist You with Challenging a Will

Our experienced team of lawyers specialises in handling contested will claims. We can assist you in determining your eligibility to challenge a will, help you understand your rights and options, and provide representation throughout the entire process.

In addition, we offer expert guidance on estate planning and will preparation. Our services include drafting your will, how to adequately provide for dependents and ensuring the desired distribution of your estate.