The Singapore Law Gazette

Where There’s a Will, There’s a Way – Provided You Can Find the Original Will

Introduction

The adage “where there’s a will, there’s a way” takes on a literal significance when it comes to the world of estate planning, where the validity and effectiveness of will hinges critically on its existence, authenticity, and accessibility after its testator’s death.

This article will explore a practical yet often overlooked aspect of estate planning, namely:

• where to store and register a will;
• some suggestions on how to find a will;
• some practical tips for storing wills; and
• what happens if an original will cannot be found.

While this article focuses on common practices in Singapore, it will also look briefly at the practices in other countries as well, which may be useful for lawyers who have a cross-border practice in estate-planning.

Will Storage and Registration in Singapore

In Singapore, will storage and registration are not mandated, but it is still critical for estate planning as the choice of storage can impact the security of the will and ease of its execution after a testator passes away.

Key options in Singapore include:

• SAL Wills Registry: The Wills Registry, maintained by the Singapore Academy of Law (SAL), is a non-mandatory confidential registry where details of wills – but not the actual wills themselves – are stored.

  A news report back in 2021 suggested that the SAL was expected to expand its services to include the uploading of digital copies of wills into the registry,¹Tan Ooi Boon, “You can secure your wills digitally soon” (31 January 2021), The Straits Times, at https://wills.sal.sg/App/Templates/You_Can_Secure_your_Wills_Digitally_Soon.pdf (accessed on 22 November 2023). but such a service has yet to be rolled out as of the date of this article.

• Law Firms: Some law firms offer secure will storage services for a fee or as a value-added service.
• Non-Lawyer Will Writers: Some non-lawyer will writers or will writing companies also offer wills storage services. However, it may pose risk as they are not mandated to obtain insurance to guard against unforeseen circumstances, such as when loss or damage of wills during storage.
• Bank Safe Deposit Boxes: Some banks offer safe deposit boxes with a high level of security, but it could pose complicated legal challenges in accessing the will after the testator’s death (more on that below under “Practical Tips For Storing Wills”).
• Private Safe Deposit Boxes: Similar to banks, there are independent private facilities around which also store wills, but similar accessibility issues would apply, especially if the safe deposit box is in the testator’s sole name.
• Home Storage: Storing a will at home – usually in a safe or in a secure location – is a common choice for easy access, but it may pose security risks or damage risks such as house fires.
• Trusted Family Members or Friends: Some may choose to leave their will with a trusted family member or friend, but this requires careful consideration of the person’s reliability and the potential for disputes.

Will Storage and Registration in Other Countries

Some countries have systems in place for the storage or registration of wills to ensure their authenticity and to facilitate their execution after a testator’s death.

Asia

In most Asian countries, including China, Hong Kong, Indonesia, Korea, Malaysia, Myanmar, Philippines, Taiwan, Thailand, and Vietnam, centralized will registries are uncommon. Wills are generally stored with notaries, law firms, privately, or at home.

Japan stands as an exception, offering will deposit services at the Legal Affairs Bureau.

Europe

European countries often have centralised registries which typically record the testator’s residence and location of inheritance documents. However, the original will normally remains in the custody of a notary or with a local court or authority.

Some examples of centralised will registers are:

• France: French Central Wills Register (Fichier Central des Dispositions de Dernières Volontés);
• Germany: Central wills registry (Zentrales Vorsorgeregister);
• Italy: General Will Registry Bureau (Registro Generale dei Testamenti);
• Spain: General Registry of Acts of Last Wishes (Registro General de Actos de Última Voluntad);

The European Union’s Convention on the Establishment of a Scheme of Registration of Wills²ETS No. 077 dated 16 May 1972, entered into force on 20 March 1976, at https://rm.coe.int/16800730d1 (accessed on 22 November 2023). also establishes national will registration schemes and facilitates the finding of wills made abroad among signatory states.

United Kingdom

The United Kingdom offers the National Will Register, but registration is voluntary.

North America

In Canada, provinces like British Columbia have will registries (through their Vital Statistics Agency).

In the United States, certain states like Alaska allow residents to deposit their wills with the local courts.³Alaska Court System, “Where should I keep my original Will?” (18 December 2017), at https://courts.alaska.gov/shc/probate/probate-wills.htm#keep-original (accessed on 22 November 2023).

Oceania

Some Australian states, such as Victoria, have a wills registry that allows one to store wills and powers of attorney with them.⁴State Trustees Limited, “Store your documents in the Victorian Will and Power of Attorney Registry” , at https://www.statetrustees.com.au/wills/register-store-my-will-safely/deposit-store-your-will-power-of-attorney/ (accessed 22 November 2023).

New Zealand also offers will storage services, such as through the Public Trust of New Zealand.

Middle East

Dubai has a registry for non-Muslim expatriates through the DIFC Wills Service Centre.

The brief survey above shows that centralised will registration is often voluntary, but it nevertheless plays a crucial role in maintaining testamentary freedom and ensuring the accessibility of a will after death.

Practical Tips for Storing Wills

When advising clients on storing wills, several best practices could be considered:

• Secure and Accessible Location: Chose a place that is secure yet accessible to the executor or relevant parties after the testator’s death. Ensure the location is protected against theft, fire, flood, and other hazards, if possible.
• Notify Executors and Family: Informing executors or key family members about the location of the will is encouraged, but this must be done without compromising the will’s security and taking into account the testator’s family dynamics.
• Keep Copies: Having copies can be useful if the original will cannot be located later on (more on that below). Copies of wills, however, should be clearly marked as duplicates, and the testator should also be cautious with how many copies of the wills are distributed and to whom.
• Consider Executing and Storing More Than One Original: There is no known prohibition against a person executing more than one original of the will at the same seating (see further below “What do these case studies mean for lawyers?”), and for the originals to be kept in separate places or by different custodians.
• Avoid Solely-Held or Joint Safe Deposit Boxes: Avoid storing a will in a safe deposit box that is in the testator’s sole name, or in a joint-only account (“AND” account). Otherwise, access to the safe deposit box could be restricted upon the testator’s death. It becomes a “probate paradox”: a grant of probate would often be needed in these situations to obtain access to the safe deposit box, but if the original will is trapped in the same box, an intended executor may find it challenging in obtaining the grant of probate in the first place.
• Deposit Will Information at the Will Registry: Encourage a testator to deposit will information with SAL’s Wills Registry. This provides an additional method to locate the will.
• Avoid Home Storage Risks: If a will is stored at home, use a fireproof and waterproof safe. Highlight to the testator the risks, including the possibility of the will location being overlooked or forgotten after their passing.

By advising a client along these lines, we can help ensure that their will is not only safe and secure but also readily accessible when needed.

Finding a Will in Singapore

In Singapore, finding a will can be approached in several ways:

• Check with the Wills Registry: The Wills Registry can provide details of the will, if one was made, and the lawyer or firm that holds it. However, remember that a registry search may not be conclusive as registration is not mandatory, and registry information may also not be up-to-date if the testator had made new wills after that.
• Enquire with Law Firms: Contact the law firms that the testator may have regularly consulted with when alive.
• “Information on Wills” Notice: Lawyers may post a notice on the Law Society’s “Information of Wills” that is circulated monthly to all lawyers in Singapore to find wills by deceased individuals.
• Search Personal Belongings: Checking through the testator’s personal belongings, documents and personal safe deposit boxes (if any) is a common way to find a will.
• Family and Close Associates: Inquire with the testator’s family, friends or associates who might know about the location or existence of a will.
• Digital Storage: Check the testator’s digital records or with any known digital estate planning services used by the testator for any digital copies of their wills.

These methods collectively offer a comprehensive strategy to locate a will in Singapore, catering to both traditional and digital will storage practices.

When the Original Will Cannot Be Found

Proving a Copy of a Will

If an original will goes missing, there is a legal presumption that the testator destroyed the will with the intention of revoking it. This is known as animo revocandi.

This presumption, however, is rebuttable, especially if a copy of the will is available.

This typically involves demonstrating that the original will had been validly executed (i.e. it met all formal and capacity requirements when it was signed), establishing why the original will cannot be found, showing that the testator did not intend to revoke it, and providing evidence that the copy accurately represents the original will, in order to admit the copy into probate in lieu of the original.

If these cannot be proven, then the estate would have to be distributed according to the laws of intestate succession, as if no valid will exists.

Case study where a copy of a will that was successfully proved

The case of Lim Boon Ming v Tiang Choo Yang [2002] 1 SLR(R) 456 (Lim Boon Ming) provides an illustration of a successful admission of a duplicate will to probate.

In that case, the testator had executed his will in 1969, retaining the original and leaving a signed carbon copy with his lawyer.

Before his death in October 1998, he shared a photocopy of the will with his brother in January 1998, indicating his continued adherence to its terms.

Upon his passing, the original will went missing, leading to a dispute between his son (who stood to get 60% of the testator’s estate under the will) and his second wife (who stood to get only 30% of the estate under the will).

Belinda Ang JC (as she then was) held that although the presumption of animo revocandi had arisen, the January 1998 episode indicated the testator’s sustained intention to commit to his will, and there was no evidence suggesting that he changed his mind afterward until his death.

As such, the Court ordered that the duplicate will be admitted to probate.

Case study where a copy of a will that was not successfully proved

Conversely, the recent case of WEZ v WFA and another [2022] SGFC 62 (WEZ) demonstrates the difficulties in admitting a will copy to probate when faced with evidentiary challenges.

Here, the testator had bequeathed properties to each of his four children under his will and left the residuary estate to his former wife (the Plaintiff), but as he no longer owned those properties by the time of his death, the Plaintiff became the sole beneficiary of the will.

The original will was locked up in a safe which could not be accessed by the Plaintiff, so she sought to admit to probate a copy of the Will contained in photographic images taken with her phone.

However, District Judge Cassandra Cheong found significant discrepancies in the Plaintiff’s images and a lack of technical evidence supporting their authenticity. The Plaintiff also failed to convincingly explain the absence of the original will or counter the presumption of animo revocandi.

Thus, the Court did not admit the photographic images of the testator’s will to probate.

What do these case studies mean for lawyers?

The cases above show that losing or not being able to find an original will does not mean that the estate is immediately doomed to intestacy.

However, the validity of any existing will copies and availability of witness testimony regarding the testator’s intentions become pivotal in such situations.

Given the challenges in proving the validity of will copies (as illustrated in the case of WEZ), lawyers might consider a proactive approach: assisting clients to execute a will in multiple originals, with identical content, at the same signing session. This method ensures that if one original is misplaced, the others can serve as viable substitutes for admission to probate.

While the Wills Act 1838 (2020 Rev Ed Sing) does not explicitly forbid executing a will in this manner, there is a nuanced legal risk: if two identical original wills are signed in quick succession and one subsequently goes missing, it could raise questions about the revocation of the “earlier” original by the “later” original, especially if the “later” original had been misplaced and the “earlier” original is being admitted to probate.

However, given that both originals are identical and signed simultaneously, a compelling argument exists for treating them as one-and-the-same, with either original being adequate for admission to probate. The stance that the Singapore courts might adopt in such a scenario, however, has yet to be determined.

Unsigned Copies of Wills

If only an unsigned draft of the will is available, it could be highly challenging to admit it into probate as the formal requirements for a valid will in Singapore are stringent, especially the need for the testator’s signature.⁵See section 6 of the Wills Act 1838 (2020 Rev Ed Sing).

Theoretically, it could be possible to apply for probate on a draft will under section 9 of the Probate and Administration Act 1934 (2020 Rev Ed Sing) if there is substantial evidence to suggest that the unsigned draft reflects the testator’s intentions. However, this remains untested in the Singapore courts for now.

Conclusion

As seen above, strategic will management is essential to ensure that a testator’s final wishes are not only clearly articulated at the point of making a will, but also securely preserved, accessible and honoured after the testator passes away.

The effectiveness of a will thus depends not just on its content but, critically, on its availability after death.

Where there’s a will, there must be a way to find it.

The author would like to thank Mr Goh Kok Yeow (De Souza & Goh, Co-Chairperson, Probate Practice Committee) for providing his invaluable comments on the draft of this article. Any errors in the article remain the author’s own.