A will is a written document by a testator (the person making the will) that describes how their estate will be dealt with after they die. A will also sets out who the executor is – the executor is the person responsible for carrying out the instructions of the will. A will outlines how they wish to distribute their estate upon death.
An estate is the entirety of the deceased person’s property (assets, liabilities, etc.) that they own at the time of their death.
The Singapore courts will not set aside a will simply because interested parties are unhappy with it. Some family members may feel that the will is unfair, for example, if they were left out of the will and received no inheritance. The position of the courts is that if a will was made properly and validly, it will be enforced and the wishes of the testator should be respected and followed.
However, there are situations when somebody may want to contest a will.
Who can contest a will in Singapore?
Someone who is interested in the will or is dependent on the testator may contest a will. Spouses and dependents can challenge a will if they were financially dependent on the deceased or if the deceased had a legal obligation to support them. Usually, a beneficiary contests a will when they feel it does not adequately reflect the testator’s wishes, and they believe they should inherit more, or they are a dependant, and it does not offer sufficient maintenance.
Contesting a will means that you challenge the terms or validity, and the distribution of the estate should be different from what is in the will.
Grounds on contesting a will in Singapore
There are four grounds to contest a will:
(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 testator’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 on the basis of 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 issed 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.
We can help if you wish to challenge a will
Our experienced lawyers can provide an expert service in bringing a contested will claim. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process.
We also offer an expert service advising our clients on their estates and in the preparation of their wills. We can advise you on how to approach providing for dependents and the distribution of your estate.