Best Practices for Wills Drafting – Ten Points to Consider
With the increased emphasis on wealth management and legacy planning in Singapore, there is a steady flow of people approaching law firms on solutions for such issues, or at least thinking about how best to provide for their loved ones after their demise. While advising on and drafting of wills may seem to be a simple exercise, lawyers should be mindful of common pitfalls and potential blind spots, which could make the will an overflowing source of contention, as opposed to being a definitive document that sets out the testator’s wishes. This article aims to provide 10 non-exhaustive pointers for lawyers to consider and keep in mind when advising non-Muslim clients on the drafting of wills.
First, the situation of accompanied clients. Lawyers are often introduced to clients through well-meaning relatives, who wish to ensure that their loved one’s interests and being protected and respected after their death. In such cases, a significant majority of these relatives will eventually become named beneficiaries in the will. This will give rise to the inevitable question of conflict of interest and undue influence. This question may become a bigger issue if (a) the client is accompanied by such relatives to meetings at the law firm to give instructions or (b) the client’s instructions are conveyed via electronic means through such relatives.
In such situations, it is key that the lawyer ascertains with certainty that the instructions received are indeed from the client and given with his/her own free will. Measures that a lawyer can take may include: (a) taking instructions in person and away from any third parties, (b) ascertaining if the client’s attendance at the law offices is with his/her own free will, (c) scheduling at least two meetings to ascertain and confirm the instructions given, (d) if a physical attendance is not possible, to check such instructions via a video call, (e) allowing the client to review the will in private before it is executed, (f) executing the will in the absence of any potential beneficiaries and (g) maintaining client confidentiality at all times.
Second, lawyers may come in contact with people who are currently unmarried but have a long-term partner (with marriage potentially in the horizon). To avoid the will(s) from being revoked automatically through the operation of section 13(2) of the Wills Act if parties later decide to get married, the will(s) should specifically state that they are being made in contemplation of marriage.
Lawyers may also come across families with children born out of wedlock or with stepchildren. If the topic comes up for discussion, it may be a good idea for such families to be informed that the intestacy laws in Singapore generally do not provide such loved ones with any share of their assets upon their demise. Hence and if so desired, they should be encouraged to make a will to ensure that their loved ones will receive an appropriate share of their assets upon their demise, and to expressly state that any illegitimate children or stepchildren of theirs are to be considered as their children for the purposes of the will. Otherwise such children may be disentitled from receiving any benefit under the will.
Third, it is not uncommon for clients to consider making a will only when mortality is a less remote or imminent prospect. In that situation, it is vital for lawyers to be the first line of defence and consider whether the client has the requisite testamentary capacity. The “essential requisites of testamentary capacity are that: (a) the testator understands the nature of the act and what its consequences are; (b) he knows the extent of his property of which he is disposing; (c) he knows who his beneficiaries are and can appreciate their claims to his property; and (d) he is free from an abnormal state of mind (e.g., delusions) that might distort feelings or judgments relevant to making the will”.1ULV v ULW (2019) 3 SLR 1270; (2019) SGHCF 2 at (25). Evidence of such matters should be well documented, through written correspondence or attendance notes (preferably in verbatim) so that a well-meaning will would not be subsequently defeated.
Fourth, while English is clearly the dominant language of use in Singapore, some clients may still be more comfortable with conversing or giving instructions in their mother tongue or in dialect. In some situations, clients may require some coaxing and reassurances before opening up about their comfort to instruct in another language of choice. Lawyers should also ascertain, through normal speech, if the person is comfortable giving instructions in English or in another language. Once it is established that a translator is required in respect of a will that is drafted in English, lawyers should ensure that (a) the person tasked to translate the contents of the will is able to produce documents showing his/her language expertise and (b) such qualification be presented to the client at the time of the execution of the will. It may also be prudent for the lawyer to keep a digital copy of the translator’s relevant qualification, so that if the probate turns contentious, any dispute over the presence and/or adequacy of the translation may be easily and quickly addressed. If the lawyer acts as the translator, the lawyer must be competent to conduct the translation in a thorough manner.2Low Ah Cheow and others v Ng Hock Guan (2009) 3 SLR(R) 1079; (2009) SGCA 25 at (73).
Fifth, married couples may approach lawyers with a view of drafting a set of mutual wills. A mutual will is defined as “a will made by two or more persons pursuant to an agreement between them to make the wills and not to revoke them without the consent of the other”.3Halsbury’s Laws of Singapore Volume 15 at (190.224) Such an agreement not to revoke them without the consent of the other is enforceable such that if one party passes away, the surviving party cannot revoke the will.4Halsbury’s Laws of Singapore Volume 15 at (190.224) Mutual wills are in contrast to joint or mirror wills, which do not contain such stipulations on revocation. If the distinction is not properly appreciated and mutual wills are drafted instead of mirror wills, a lawyer may subject to a negligence suit.
It should be highlighted that if mutual wills have been executed, the agreement not to revoke the wills remain enforceable even if parties later fall out or there is a divorce. When advising divorcing couples who have previously executed mutual wills, lawyers should seek to obtain a mutual release from the mutual wills.
On a separate note, lawyers who represent divorcing clients may wish to, as a value-added service, advise their client to draft a fresh will after the divorce has been finalised. In addition, divorce lawyers who have just acted for a divorcing client will have unparalleled knowledge of the client’s assets and will be in the best position to advise on the most appropriate structure and language of the will.
Sixth, in cases where a client has substantial assets (especially across asset classes and jurisdictions), it may be appropriate to advise the client to appoint an institutional executor to execute the will. If individual executors are asked to execute a will involving substantial assets across asset classes and jurisdictions, it is likely that such individuals may disclaim their right to probate because of (a) the potential difficulties in executing such a will, which may be attributable to the lack of professional forensic, accounting and financial knowledge; (b) the potential liabilities faced by the individual executor if the estate is not properly administered; and (c) the lack of economic impetus to execute such a will, especially if the will does not provide for any remuneration. If the appointment of an institutional executor is desired, then the relevant institution should be consulted and an agreement be reached on, among other things, how remuneration of the institution executor should be structured and paid.
Seventh, lawyers assisting clients in the drafting of wills should consider and advise on the possible worst-case scenarios, such as the situation where beneficiaries predecease the testator. The solution in such a scenario may be simply to provide that if a beneficiary predeceases the testator, then the assets shall be devolved to a different set of beneficiaries (be it to the issue of the beneficiary or divided between the remaining living beneficiaries). While wargaming such scenarios may be unpleasant, it is certainly the lawyer’s role to ensure that all blind spots are adequately covered.
Eighth, while it may be convenient to draft wills that divide a testator’s assets based on percentage (where a particular beneficiary receives a particular percentage of the testator’s total assets), such an arrangement may create difficulties for the executors and the beneficiaries. Such difficulties may especially arise in cases involving assets which are difficult to value (such as privately held companies in less developed jurisdictions), illiquid assets and/or substantial number of assets (since in order to ascertain the exact amount to be transferred/paid to each beneficiary, all assets must be valued). Hence, it may be prudent to provide for how key assets are to be distributed and, to prevent partial intestacy from arising, maintain a catch-all provision to cover all remaining residual assets. The client should also be encouraged to make a new will if there are substantial disposition or acquisition of assets.
Ninth, it may be the case that a testator may not wish to leave any assets for one or more close relatives. For example, a father may not wish to leave assets to renegade child, opting instead to leave his assets to a number of other relatives. If the client so desires, it will be prudent to inform him/her of the provisions under section 3(1) of the Inheritance (Family Provision) Act (IFPA), where the Court is empowered to “make reasonable provision” for the maintenance of (a) a wife/husband, (b) a daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself, (c) an infant son or (d) a son who is, by reason of some mental or physical disability, incapable of maintain himself.
Notwithstanding section 3(1) of the IFPA, section 3(7) of the IFPA provides that the court shall “have regard to the deceased’s reasons, so far as ascertainable, for making the dispositions made in his will (if any), or for refraining from disposing by will of his estate or part of his estate, or for not making any provision, or any further provision, as the case may be, for a dependant”. Hence, it will be prudent to provide short reasons in the will why no provision is made for a close relative. It may take the form of the following statement: “I hereby declare and confirm my reason for not making any provision for X in this my Will is that he is possessed of adequate means to support himself.”
Tenth, as the final step in the will drafting exercise, it is a good idea to apprise of the client of the presence and function of the Wills Registry. The Wills Registry, maintained by Singapore Academy of Law, is a confidential registry where testators or their solicitors can deposit information on wills. However, it does not keep the actual copy of the will, and only provides (a) the name of the testator, (b) the date of the will, (c) the details of the person who drew up the will, and (d) details of where the will is held. This may be particularly important in cases where a testator wishes to make a will without his/her family’s or the beneficiaries’ knowledge. The Wills Registry should similarly be the first port of call for probate lawyers, especially when it is unclear whether the deceased left a will or not.
In closing, it should be emphasised that a lawyer should not only consider issues of undue influence or testamentary capacity, but also consider the practicality and viability of the proposed will execution process. This will require some consideration on, for example, the need for institutional executors, on how a division purely by percentages could make the administration process overly complicated, and on how best to ensure that the testator’s wishes to provide for or not to provide for a particular relative remains enforceable. While the abovementioned points are certainly not exhaustive, it is hoped that they would serve as a helpful guide (for lawyers new to the practice) or a reminder (for lawyers experienced in this area of practice) of the common pitfalls and potential blind spots, as the fraternity navigates this important yet evolving area of practice.