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Wills

Tracing Beneficiaries

By Mr Lee Chiwi
Excerpt from PreceptsGroup Succession and Trusts in Wealth Management (4th edition) Book

When there is no will, the estate of the deceased is distributable by default according to the intestacy rules. Quite often, when the administration of the estate is able to proceed soon after death, identifying the persons who are entitled under the estate usually poses no problem. But when the nearest relatives of the deceased are no longer around, the personal representative may have to trace not only the deceased’s surviving descendants but the ascendants (including their spouses and children). Matters become more complex when these family members have become estranged, relocated and are residing elsewhere in the world or when the personal representatives of family member descendants and ascendants who are deceased, are also deceased. Hence even when the administrator of the estate had already collected the assets of the deceased’s estate, they are not in a position to make distributions when they have not ascertained all the beneficiaries who are entitled. The following two cases are examples of the complexities involved in the tracing of beneficiaries.

Administration of an Estate 75 years On!

The first involves the administration of the estate of Madam Wan Chin Neo. In 1937, a Peranakan widow Wan Chin Neo, a mother of three, bought a small bungalow in Katong for the then princely sum of $1,900. She decided the property should remain in the family for generations to come and created a trust that stated it was for her descendants to occupy in perpetuity. By the end of 1939, Madam Wan and her two adult daughters were dead. Only her son was alive. It was more than 70 years before the house in Carpmael Road in Joo Chiat came to the attention of the High Court, when some of Madam Wan’s descendants wanted to check if the trust was valid. The court ruled that her intention to keep the house in the family forever was not valid and ordered the property be sold and its proceeds distributed among her surviving descendants. The run-down house was sold in 2013 for almost $4 million. But the biggest challenge is that the trustees are duty bound to search and to track down Madam Wan’s surviving descendants, who are entitled to a share of the proceeds. Madam Wan and her three children had all been long dead, and none of them left a will. Under inheritance rules, this means the money should be shared by their lineal descendants. Even then, the trustees are dealing largely with Madam Wan’s great and great-great grandchildren, many of whom are already retirees and of senior age. Some fifty people have stepped forward or have been asked to stake their claims. According to Rockwills Trustee, the trustees who were appointed, the search for Madam Wan’s descendants had included tombstone inspections at the Bukit Brown cemetery, a listing on the Government Gazette and newspaper advertisements.

Estate of Reclusive Sisters

In July 2016, the Straits Times reported that the skeletons of two elderly women were discovered at a single-storey terrace house at 17 Jalan Batai, which was worth at least

$2 million. It was revealed that the skeletons were of two reclusive sisters, Pearl and Ruby Tan, whom neighbours and relatives said had not been seen in over a decade. In an unprecedented move, the Public Trustee’s Office (PTO) asked interested parties to submit their claims on the estate of the sisters, which includes the house owned by Pearl for their investigations.

As part of the verification process for the Tan sisters’ case, the PTO spent three weeks searching the National Library Board’s digital newspaper archives, and pieced together a family tree that includes Pearl and Ruby’s parents, grandparents, aunts and uncles on both sides.

It was reported that the High Court had issued an order that both sisters be presumed dead; as they left no known will and have no legal beneficiaries, their assets go to the State under the Intestate Succession Act. However, under the Civil Law Act, any person can make a “moral or equitable claim” on the basis of bona vacantia by demonstrating their relationship to the deceased sisters. The PTO administers such claims.

Considerations for bona vacantia claims include the length and nature of the relationship between the deceased and claimant, any legal or moral obligations, which the deceased had towards the claimant and any contribution made by the claimant to the welfare of the deceased while alive. If the Law Minister is satisfied with the claim made, he can disclaim and release either part or all of the Government’s right to the estate to the claimant.

(See “Estate of reclusive sisters now open to claims” Straits Times, 10 Jul 2016, Tiffany Fumiko Tay)

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Categories
Wills

Legal Requirements for Valid Wills

There are some basic legal requirements for a will to be valid under the Wills Act (Cap 352).

  • The testator must be at least 21 years old and of sound mind. Persons under 21 years old and in active military service or a mariner or seaman, can still prepare a will. These are known as “Privileged Wills”.
  • The will is to be in writing and signed at the end by the testator.
  • The signature of the testator must be at the foot of the will as any writing below the signature will not be valid.
  • At least two witnesses are to be present to witness the signature of the testator and in the presence of each other. They should in the presence of the testator, also sign as witnesses.
  • Beneficiaries under the will are prohibited from signing as witnesses to the will. Spouses of beneficiaries also fall within this prohibition. The will is not rendered invalid but these beneficiaries or their spouses who are the witnesses, will not be entitled to any gifts in the will.
  • For validity, the testator must have the necessary testamentary capacity to make and execute the will meaning that he must be of sound mind when he executes the will.
  • In general, a will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed or of his domicile when the will was executed or when he dies or of the territory where the testator was habitually resident or the state where he was a national (see the “Formal Validity” rules in section 5 Wills Act).

The Strict Requirement for a Minimum of Two Witnesses

In AEL and others v Cheo Yeoh & Associates LLC and another [2014] SGHC 129 the will was invalid as it did not comply with the formalities required under the Wills Act. A fundamental requirement is that for a valid will, it must be executed by the testator in the presence of a minimum of two witnesses. The will was found to be witnessed by a sole witness, namely by the lawyer himself, Johnny Cheo and therefore was not in compliance with the law.

This resulted in quite a different distribution basis from that stipulated under the terms of the will. At stake were the distributable assets in Singapore, an amount of AUD1.8 million in a Citibank Account. With the invalidity of the will, some of the named children under the will got less than what were due to them and the grandchildren were totally excluded altogether under the intestacy laws.

As a result of the alleged negligence, those aggrieved beneficiaries claimed about AUD719,000 from Mr Ali’s lawyer and his firm Cheo Yeoh & Associates. The sum represented the difference between what they would have received under the will and what they received eventually. On the other hand, the two children not named in the will had a windfall, while the other saw an increase in his share. They did not sue the lawyers.

In another decision, Harshenin v Khadikin (2015 BCSC 1213) the Supreme Court of British Columbia held a will invalid on the grounds that the propounder had not “discharged his burden of showing, on a balance of probabilities, that the alleged will was duly executed by the deceased”. It was not established that “two witnesses saw the deceased signed or acknowledged his signature on the alleged will”. The judge also stated that there was no reliable evidence that the deceased “read and appeared to understand the alleged will”.

Categories
Wills

Helping Families through our Estate Administration Work

Over the years, we have helped many families in administrating their family members’ estates. In some cases, the estate administration was extremely challenging. The complexities involve dealing with various parties, the court, litigation, or multi-faceted groups of beneficiaries. We have seen many lay executors suffer prolonged stress and anxiety over many years before considering appointing us as Executor and Trustee.

More than 2500 of our clients have chosen to appoint us as their Executors and Trustees under their Wills. We now highlight some of the cases that we have administered.

Estate of PB

A high-profile Senior Executive, Mr. PB passed on the operating table during treatment in December 2009. He had a Will appointing two of his close friends as the executors. However, both renounced their rights to apply for the Grant of Probate – one of them was in a state of grieve and the other was a busy Senior Executive. The executors and the beneficiaries (family members) came to seek our assistance and consented to our appointment as the professional administrators of the estate of Mr. PB.

In 2011, we initiated an action to sue the doctors and the clinic for damages and loss of inheritance that the dependants of Mr. PB had suffered.

The legal proceedings involved complex technical and medical issues and went on for a period of 5 heart-wrenching years before the first judgement. We had to employ relevant specialists to contest the case and to guide the family members each step of the way. In 2016, the Court of Appeal allowed our claim for damages amounting to $3.698 million. However, the legal proceedings did not end here.

After the Court of Appeal’s judgment in 2016, the taxation proceedings went on for another 2 years for the court to decide our claims on the amount of legal costs incurred for bringing the action to sue the doctors and the clinic. In 2019, the court allowed the legal costs in the amount of $756,000. It took 10 years for the case to be concluded. If not for our appointment, it would be a huge strain and pain for the family members and the lay executors.

Estate of WCF

It should be noted that the duties of a personal representative of a Deceased’s estate may involve him making decisions to sue on behalf of the estate but also face the prospects of defending legal suits against the estate. The personal representative may also potentially risk being sued for the failure of fiduciary duties.

WCF passed away in 2016 leaving a Will appointing us as his professional executor. In February 2019, we received a letter of demand from a firm of solicitors claiming for an amount of about $2 million against the WCF’s estate.

As a professional executor, we examined the merits of the litigation suit thoroughly. After examining our deceased client’s position, we attempted to settle the matter amicably in the best interests of the Estate. After effective negotiations, both parties agreed to engage a professional accounting firm to prepare a report to determine a reasonable claim amount to resolve the matter out of court and avoid engaging in litigious proceedings. We are glad that we were able to assist the family in managing the undue stress from dealing with such complex legal matters.

Estate of WLC

WLC passed away in 2000 leaving a Will appointing both of his two sons as the executors of his estate. Unfortunately, the two lay executors only extracted the Grant of Probate for their late father’s estate in 2008, after 8 years.

After obtaining the Grant of Probate in 2008, the two lay executors who were not aware of the complications and risks of delaying administration to liquidate a house in which their late father was the 50% registered owner.

In 2016, the lay executors finally decided to sell the house when all the funds in their late father’s estate had been fully utilised for the maintenance of the house. But they could not proceed as the other co-owner of the house had lost his mental capacity and therefore unable to sign any documents.

The lay executors were left with no other alternative but to spend additional costs to commence Deputyship Proceedings to appoint a Deputy for the co-owner. This resulted in protracted proceedings as there was little cooperation from the co-owner’s relatives.

Yet in another twist, in the midst of the Deputyship Proceedings, the co-owner passed away. The sale of the house was furthered delayed as it now required an administrator of the deceased co-owner’s estate to be appointed. They were struggling to maintain and manage the house due to these legal constraints and the financial demands to pay for legal fees.

The lay executors were relieved to discover our services. They approached us to take over the administration of their late father’s estate as they had advanced a lot of money for the Deputyship Proceedings out of their own pocket. Most significantly, they were also facing constant pressures from the various beneficiaries who demanded for the sale proceeds of the house. They were also under constant accusations of mismanaging the executorship appointment and faced potential legal risk exposure for negligence.

Upon acceptance of the estate administration case, we proceeded to complete the administration of their late father’s estate, including liaising with the administrator of the deceased co-owner. Our efforts helped them to finally complete the sale of house in 2017 at $1.8 million. With our professional discharge as administrators, we prepared statements of the estate account and made the distribution of the sale proceeds of the house to all the beneficiaries satisfactorily. The two brothers were finally relieved of an issue that had hung over their heads for some eighteen years.

Estate of SAG

SAG appointed us the professional Executor in his Will.

SAG was the sole shareholder and the sole director of a company that is still in active operation and generating good profits. The company employed a sizable group of employees at the point of his death. The value of his company shares was worth about $2.7 million at his death.

When SAG passed away, most of the company transactions had to be put on hold and the company account was frozen as SAG was the only signatory for the company’s bank account. Further, the company was not able to tender for new contracts, which was crucial for the business. It was a very worrisome and anxious period for many of the employees in the company.

SAG’s business was vulnerable as they could lose their business to competitors or the employees leave the company due to uncertainty. So, we had to act fast.

We acted quickly and stepped in to stabilise the company operations and to resolve the internal conflicts in the company. We appointed key persons to head up the company’s operations under our supervision.

We managed to obtain the Grant of Probate within 2 months and brought the company back to its normal operations.

One year after SGA’s demise, a formal valuation was carried out by professional valuers and SAG’s company shares were valued at $7.8 million. We were glad to have preserved the value of the business and also the livelihoods of so many employees.
 
This article is first published on our newsletter, The Custodian Issue 13 on February, 2020. Click here to subscribe to our latest newsletter.

Categories
Wills

Estate Administration for Insolvent Estates

How The Case Unfolded

This case unfolded with Robert’s call to Precepts looking for help. In the call, Robert* informed us that he had been appointed as the sole executor and trustee of his late mother’s Will. According to Robert, his mother did not appoint any other executor, since Robert was the sole beneficiary. However, he wanted to renounce his right to apply for the Grant of Probate. He wanted Precepts to take over his role in administering his late mother’s estate as he was facing a lot of stress and anxiety in the estate administration.

As the Will was not drafted by Precepts, we held a meeting with Robert to better understand the situation. He disclosed that his businesswoman mother had encountered some financial difficulties just before her passing. As a result, his mother had left huge liabilities behind. After studying the case, Precepts tabulated that her estate’s liabilities were projected to be greater than the remaining assets of the estate.

The Beginning of Robert’s Nightmares

Ever since the creditors discovered he was the named Executor of the Estate, they started going after Robert to demand for re-payment of his mother’s debts. He received numerous calls from various banks’ collection departments almost every single day. He was also informed by the banks that late payment for his mother’s credit card debts and the legal fees would continue to accrue until full settlement!

He also realized that he would unlikely benefit from the Will as his mother’s estate was insolvent. He had no peace of mind. He was very concerned that the property which was owned in his name (he purchased with his own money together with his wife), could be taken away by the creditors. He was so pressured that he started to believe he had to sell his own house to settle the debts.

The Appropriate Actions Taken By PreceptsGroup

After Precepts was appointed to act as the administrator, the creditors started to deal with Precepts, and not Robert. The phone calls to Robert ended over time. It had been a long process for Precepts to deal with the banks and to meticulously verify each of the creditors’ claims. It was something Robert had not been able to do so. The estate also received claims from the Inland Revenue Authority of Singapore (IRAS). After Robert’s mother’s house was sold, the net sale proceeds were used to first settle the IRAS claim before the balance debts and liabilities were paid proportionally to the respective claims admitted by Precepts.

Robert was also relieved to find out that he could claim the money which he had advanced for his mother’s funeral expenses (with supporting documents), as this claim had priority before the rest of the creditors.

After Robert relinquished his right and appointed Precepts as the administrator of his mother’s estate, he and his wife were able to resume their lives normally again.

*Name and facts have been modified for privacy purposes.

This article is first published on our newsletter, The Custodian Issue 11 on April, 2019. Click here to subscribe to our latest newsletter.

Categories
Wills

5 Issues to Take Note When Addressing Overseas Assets in Your Singapore Will

Have you considered engaging will writing services in Singapore? Over the course of your life, you may have acquired overseas assets for investment purposes, as a family holiday home, etc. You may wonder what happens to your overseas assets when you pass on? Can you include them into your assets to pass on to your loved ones? And how do we go about doing it? If you have assets, such as bank accounts, properties, or jewelry located overseas, writing a Will on your own can be hard.

In this article, we will touch on the issues you have to take note of when dealing with your overseas assets in your Estate Planning. This will come in handy to those who are looking at how to manage their overseas assets when planning out their Wills and Trust for their family.

You can include overseas assets to your Singapore Will. In fact, testators (people who create Wills) often do this as it may be more convenient as compared to drafting two separate Wills for your assets in two different countries. However, there are 5 issues you have to take note before you decide to include your overseas assets in your Singapore Will.

Making a will in Singapore | PreceptsGroup

  • Your overseas immovable property is subject to the laws of the jurisdiction it is located in

 

This means that all immovable properties, such as houses, land, condominiums will be subject to the laws of the jurisdiction that the immovable property is located in. For example, if you create a Will in Singapore, the house you own in America that was listed in the Singapore Will would still be subject to and dealt with according to the American law. Your beneficiary, the person who inherits your property, will thus have to pay relevant taxs for the property, as specified by the American inheritance tax rules.

Writing a will in Singapore | PreceptsGroup

2. Your overseas moveable assets are subject to the laws of the jurisdiction where you are domiciled in

This means that all moveable properties such as money in bank, accounts, cars, and jewelry will be subject to the laws of the jurisdiction of the country that you are domiciled in.

What is a domicile? The domicile is the country which a person officially has as their permanent home, or has a substantial connection with.

Hence, if you write a Will in Singapore, any overseas movable property mentioned in the Will would also be subject to Singapore law. If you create a Will in Malaysia, overseas movable property mentioned in the Malaysia Will would be subject to the Malaysian Law.

If you die domiciled in Singapore and you create a Will in Singapore, any overseas movable property mentioned in the Will would also be subject to Singapore law. Even if you created a Will outside of Singapore, such as with the creation of a Malaysian Will to cover your movable assets in Malaysia, such property is subject to the law of your domicile i.e. Singapore law and not Malaysian law.

Will writing services in Singapore | PreceptsGroup

Will Writing Singapore | PreceptsGroup

  • The “resealing of probate” in other jurisdictions

 

When you write a Will in Singapore, the executors of the Will whom you have appointed must apply to the Singapore court for a “Grand of Probate (GP)”, which will give them the power to carry out the instructions in the instructions in your Will.

However, when your Will includes assets (whether movable, immovable or both) located in another country’s jurisdiction, that jurisdiction must “reseal”, or give legal recognition to, the probate that your executors were granted in Singapore. Only then will your executors have the same power to carry out your instructions in relation to your overseas assets.

Note that Commonwealth jurisdictions, such as Australia and Malaysia, can typically reseal probate granted by a Singapore court. If a jurisdiction rejects your application for the resealing of probate, you will likely be treated as having died intestate (i.e. having died without making a Will), and your overseas property will be subject to the inheritance laws of whichever jurisdiction your property is located in.

Note that the resealing of probate involves its own separate court application, and thus involves more costs. The extra costs involved is one of the reasons why testators sometimes choose to create separate Wills for the assets that they hold in different jurisdictions instead of having just one Singapore Will which includes their overseas assets. A much easier process is to engage in a professional Estate Planning company that will have the expertise and experience to help you in managing the Will writing and distribution of assets both in Singapore and overseas to benefit you and your loved ones efficiently.

Another point to note on dealing with foreign investments is that the Will may need to be translated into the language of the jurisdiction, which can be quite costly. Hence it will be better to create separate Wills for the different jurisdictions and appoint a corporate executor and trustee to manage the overseas legal process.

Will writing services in Singapore | PreceptsGroup

4. Other jurisdiction may not recognise your Will

Another risk of including your overseas assets in your Singapore Will is that sometimes other jurisdictions may not recognise your Singapore Will. Consequently, you will not be able to have that Will executed in that jurisdiction according to your wishes.

In general, jurisdictions that do not follow Common Law, such as Indonesia and Thailand, might not recognise a Singapore Will.

In contrast, Common Law jurisdictions, such as the United Kingdom and New Zealand, will generally recognise a valid Singapore Will. However, this is also dependent on whether the jurisdiction in question:

  • Accepts the formal validity of the Will; and
  • Accepts the terms of the Will.

In relation to these two factors, a common law jurisdiction may sometimes accept that a Will is formally valid (i.e. it complies with the jurisdiction’s legal requirements for making a Will), but also refuse to accept the terms of the Will because they conflict with other national laws or regulations. This results in the Will not being recognised by the jurisdiction.

For example, if you were to leave all your United Kingdom assets to charity, a person who can show that they were financially dependent on you can apply to the United Kingdom court under the Inheritance (Provision for Family and Dependants Act) 1975 to challenge the terms of your Will.

If they are successful in their application, the term in your Will stating that all your United Kingdom assets should be donated to charity would not be accepted, and a portion of such assets could be allocated to the applicant instead.

Will writing services in Singapore | PreceptsGroup

5. You can have multiple Wills in different jurisdictions

It is possible to have multiple Wills in different jurisdictions. However, this must be managed carefully so that the Wills do not supersede each other. The different Wills must be drafted

carefully, and it will be a complicated process.

For example, there could be an instance where your beneficiaries may not want to manage your overseas assets. You may have properties in Malaysia, but your children may have no interest in living in Malaysia at all. In this case, you may do the following to manage your assets in Malaysia:

  1. A) appoint a professional trustee to manage the asset
  2. B) appoint one or two beneficiaries as the Trustee for that asset

Advantages of having separate Wills in different jurisdiction includes:

  • Both Wills can be probated at the same time
  • Overseas Will is already written in the language of the country, which can save cost on translation
  • The Will drafted will be recognised in their own respective countries
  • Different states, different province may have a different legal process and interpretation of the Will (as pointed out in point 5)

For professional Trustee and Wills Writing services, you can engage PreceptsGroup to help with your Estate Planning and Business Succession needs. We have expertise built on more than 20 years of experience and we are dedicated to providing comprehensive planning and solutions for wealth distribution, wealth succession, estate administration for individuals and families.

This article is first published on our newsletter, The Custodian Issue 15 on September, 2020. Click here to subscribe to our latest newsletter.