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”.
