19 September, 2012


Legal News & Analysis – Asia Pacific – Singapore – Dispute Resolution


1 Is a Will a public document in your jurisdiction?
The original Will must be lodged with the Probate Registry upon an application for probate. As with other documents filed at court, any person can inspect the Will and/or obtain an office copy of the whole or part of the Will with the leave of the Registrar, provided that “good reasons” are given as to why this is necessary. No guidance has been given as to what constitutes “good reasons” (see paragraph 118 and 145 of the Subordinate Courts Practice Direction, paragraphs
23 and 129 of the Supreme Court Practice Direction, Order 60, Rule 4 and Order 71, Rule 47A of the Singapore Rules of Court (“RoC”) and the Singapore Supreme Court Website for further information). 
Since January 2001, the Singapore Public Trustee has administered a Wills Registry service, enabling testators (and their solicitors) to deposit information pertaining to their Wills on a strictly confidential basis (including information as to the particulars of the testator, the date of the testator's Will and particulars of the solicitor/person who drew up the will). The Will itself is not deposited with the Wills Registry.
The information retained by the Wills Registry will only be made available to the testator, the testator’s solicitor (who is assisting to draw up the Will or is acting for the deceased’s estate) or the next-of kin or beneficiary of the deceased. See the Insolvency and Public Trustee’s Office website for further information.
2 What are the principal formal requirements for a valid Will or other testamentary disposition in your jurisdiction? Please include in your answer any special requirements relating to execution.
The formal requirements for a valid Will are prescribed by Section 6 (and Section 7 for appointments by Will) of the Wills Act (Cap 352) (the “Wills Act”). Pursuant to Section 3 of the Civil Law Act (Cap 43, 1999 Ed), the principles anddoctrines of equity developed over the years by the English Courts are also applicable in Singapore. 
A Will must be in writing (various forms are accepted, e.g. written by pen, typewritten, printed) and signed by the testator or by some other person in the testator’s presence and at his/her direction. The testator’s signature must appear at the foot or end of the Will. No signature will give effect to any disposition which is underneath it nor shall it give effect to any disposition inserted after the signature has been made. The testator’s signature must be made or acknowledged as his/her signature to the Will in the presence of two or more independent witnesses who must each then subscribe to (i.e. sign) the Will in the testator’s presence. There is no requirement that the Will be executed before a notary or other authority.
The witnesses must, at the very least, have the opportunity of seeing the testator sign. Whilst no form of attestation is required, each witness must have signed with the intention of attesting. Attesting witnesses (and their spouses) are precluded from taking under a beneficial gift contained in the Will, unless the Will is duly executed in the absence of their attestation (Section 10 of the Wills Act). Such person is also not entitled to apply for a grant of probate in their capacity as beneficiary under the Will (Order 71, Rule 18 of the RoC).
Note that in Singapore there is a separate succession regime for Muslims under the Administration of Muslim Law Act (Cap 3) (the “AMLA”). Section 111(1) of the AMLA states that no Muslim domiciled in Singapore may dispose of his/her property by Will except in accordance with “the provisions of and subject to the restrictions imposed by the school of Muslim law professed by him”. Section 111(2) of the AMLA, however, explicitly retains the applicability of the Wills Act with respect to the formal requirements of such a Will. Section 111(2) also excludes Section 3 of the Wills Act which prescribes the property that may be disposed of by Will. For Muslims, the latter is determined in accordance with Muslim law. See section seven below for further detail.
3 In what circumstances will a court in your jurisdiction regard a Will as duly executed even though it does not fulfil these formal requirements (for example, because it fulfils the requirements for the execution of a Will in another jurisdiction)?
For testators who have died on or after 26 June 1992, Section 5(2) of the Wills Act provides that a Will shall be treated as properly executed if its execution conforms to the internal law in force in any of the following:
(i) The territory where the Will was executed;
(ii) The territory where the testator was domiciled at the time when the Will was executed or at the time of his death;
(iii) The territory where the testator habitually resided at either of the above times; or
(iv) The state of which the testator was a national at either of those times.
In addition, Section 5(3)(b) of the Wills Act provides that a Will which disposes of immovable property shall be treated as properly executed if its execution conforms with the internal law in force in the territory where the property is situated.
For testators who died prior to 26 June 1992, the narrower common law conflicts of law rules continue to apply. Under Singapore common law, a Will is valid if it is validly executed according to the testator’s lex domicilli (i.e. the law of the testator’s domicile). As regards immovable property, the relevant law is the lex situs (i.e. the law of the territory in which that immovable property is situated).
4 How can a Will be amended or revoked, and what is the effect of marriage and divorce in this regard?
Pursuant to Section 16 of the Wills Act, no amendment to a Will after execution is valid unless the amendment is executed in the same manner as required for the execution of the Will itself. A Will, with any such alteration, shall be deemed to be duly executed if the signature of the testator and the signature of each witness is made:
(i) In the margin or on some other part of the Will opposite or near the amendment; or (ii) At the foot or end of or opposite to a memorandum referring to such amendment and written at the end or some other part of the Will.
Alterations made in pencil are presumed not to be final and effective. If an amendment is unattested and cannot be proven to have been made prior to the execution of the Will, probate will be granted of the Will in its original form (i.e. without the amendment).
A Will may also be amended by way of a codicil (being a short document amending a Will). Under Section 6(2) of the Wills Act, a codicil must also be executed in the same manner as the Will itself.
A Will can only be revoked by:
(i) The testator’s marriage (unless the Will, or a certain disposition under the Will, is expressly stated as having been made in contemplation of marriage);
(ii) Another Will or codicil (either expressly via a revocation clause or impliedly where the provisions of the later Will are inconsistent with those of the earlier Will; consistent provisions may still be admitted to probate (Lemage v Goodban (1865) LR 1 P & D 57));
(iii) A written revocation declaring an intention to revoke and executed in the manner in which a Will must be executed; or
(iv) By burning, tearing or otherwise destroying the Will by either the testator or by some person in the testator’s presence and by his direction, and with the intention of revoking it.



Divorce will not revoke a Will, though it will be revoked upon the testator’s subsequent re-marriage.
Where a Will is only partly destroyed, the remainder may still be submitted to probate. Where a Will was last known to have been in the testator’s possession but cannot be found at his/her death, there is a presumption of revocation by destruction. See Sections 13 to 16 of the Wills Act for further details.
5 Can an overseas Will govern movable and immovable assets in your jurisdiction?
To determine the law applicable to the succession to the estate of a non-domiciliary with assets situate in Singapore, it is necessary to consider Singapore private international law (i.e. its conflict of law rules).
The devolution of immovable property situated in Singapore is governed by Singaporean law as the law of the jurisdiction in which the property is situated (i.e. the lex situs) regardless of the deceased’s domicile. Where, for instance, an English-domiciled testator leaves a holiday home in Singapore in his/her Will, it is Singaporean law which will determine whether that holiday home will pass to the intended beneficiary.
The devolution of movable property is governed by the law of the deceased’s domicile at the date of death (i.e. the lex domicilli). If a testator domiciled in Hong Kong leaves a car situated in Singapore in his/her Will, Hong Kong law will determine whether that car will pass to the intended beneficiary.
6 Would an executor or administrator appointed under another jurisdiction be recognised in your jurisdiction as having the power to collect in assets?
The court recognises grants of probate and letters of administration issued by a court in any Commonwealth jurisdiction or any designated country (which currently includes only Hong Kong) and will reseal the said probate/letters of administration in Singapore, pursuant to Section 47 of the Probate and Administration Act (Cap 251) (the “PAA”). Once resealed, the original grant will effectively hold the same force and effect as a grant of probate/letters of administration issued by the Singapore court itself. An executor or administrator appointed in these countries would be recognised accordingly in Singapore.
Where an executor or administrator is appointed in a non-Commonwealth or non-designated jurisdiction, s/he will need to apply to the Singaporean courts for a fresh grant of probate or letters of administration. Under Order 71, Rule 25 of the RoC, where the deceased dies domiciled outside of Singapore, the court has discretion as to who it appoints as executor or administrator. However, it will have particular regard to: 
(i) Any person entrusted with the administration of the estate by the Court having jurisdiction at the place of the deceased’s domicile;
(ii) The person entitled to administer the estate by the law of that place;
(iii) Any executor named in the Will (if the Will is in English) or, if the Will describes the duties of a named person in sufficient terms to constitute him as executor, to that person; and 
(iv) Where the whole of the estate in Singapore consists of immovable property, the law which would have applied had the deceased died domiciled in Singapore.
7 Are there forced heirship rules in your jurisdiction?
For non-Muslims, and subject to issues relating to maintenance (see section eleven below), Singapore recognises full testamentary freedom; the testator is free to provide for the distribution of his property as he sees fit. As explained above at section two, the testamentary dispositions of Singapore-domiciled Muslims are subject to Muslim succession law. Under such law, Muslims are prohibited from disposing of more than one-third of their estate by testamentary disposition unless the “heirs” (as determined by Muslim law) consent to the dispositions after the death of the testator. In any event, all testamentary dispositions must be consented to by the testator’s heirs. In the absence of such consent, the dispositions are invalid and the relevant assets will be disposed of together with the remaining two-thirds to the testator’s heirs. The whole of the estate, in so far as it has not been disposed of by Will, devolves on the testator’s heirs following the Muslim intestacy rules (see section ten for further detail).
8 In what circumstances can an executor, administrator or equivalent be removed?
Beneficiaries to an estate can apply to have a personal representative (i.e. executor or administrator) removed where s/he has been found guilty of devastavit (i.e. s/he has mismanaged the estate by, for example, squandering and misapplying the assets contrary to the duty imposed on them). In addition, a grant of probate or letters of administration may be revoked (or amended) for “any sufficient cause” (Section 32 of the PAA). Except in exceptional circumstances, a grant will not be revoked in the absence of the application or the consent of the person to whom the grant of probate was made (Order 71, Rule 36 of the RoC). The court has a wide discretion to determine what constitutes a sufficient cause and/or an exceptional circumstance.
9 Other than the failure to observe the formal requirements, how else can a Will be challenged?
A Will is invalid if the testator
(i) Has no knowledge of or has not approved the contents of the Will; or
(ii) Does not have the requisite mental capacity (known as “testamentary capacity”) at the time of making the Will.
A testator’s testamentary capacity is determined by the test established under Banks v. Goodfellow [1870] LR 5 QB 549 (see section nine of the Hong Kong chapter).
A Will can also be challenged in cases of fraud, forgery or undue influence. Challenges on the grounds of undue influence must show that the testator was not merely persuaded but was pressured into losing his/her freedom of choice. Parts of a Will affected by undue influence can be severed from the rest of the Will. The same applies to parts of a Will affected by fraud.
Probate has also been refused where the testator was labouring under a mistake (i.e. where the testator executes the wrong document or does not know that words are mistakenly included in his/her Will (Re Hunt’s Goods [1875] LR P & D 250)). However, a challenge on the basis of mistake will not succeed where the testator is merely mistaken as to the legal effect of their Will.
10 If someone dies intestate, how are the assets administered and distributed?
The law of intestacy is governed by the Intestate Succession Act (Cap 146) (the “ISA”). However the ISA only applies to non-Muslims. As stated above, for Muslims in Singapore, intestate succession is governed by the AMLA. The ISA applies if, at the time of death, the deceased was:
(i) Domiciled in Singapore and possessed movable or immovable property in Singapore; or (ii) Domiciled outside Singapore and possessed immovable property in Singapore (see section 4 of the ISA).
As regards the administration of the estate, Section 18 of the PAA provides that the court must take into account the rights of all interested persons when determining to whom letters of administration should be granted. Without prejudice to such discretion, such letters will be granted in order of the following priority:
(i) The deceased’s spouse or next of kin or any of them;
(ii) A creditor of the deceased; then (iii) Where none of the above classes of person are available, to any person the court considers fit for the purpose.
Distribution of the estate will then be made to the beneficiaries of the estate in accordance with the ISA’s priority of entitlement rules. Where the intestate dies leaving a surviving spouse but no issue (i.e. children and descendants of deceased children) and no parent, the spouse will be entitled to the entire estate.


Where the intestate also left either issue or a parent, the spouse shall only be entitled to half of the estate. The other half will be distributed per stirpes amongst the intestate’s children and their descendants where those children have also died. Only legitimate children and those adopted under written law (i.e. under the Adoption of Children Act and not Chinese custom) are entitled. Where there is no surviving spouse, the issue will inherit the entire estate irrespective of the existence of anyone else in the list of priority (i.e. the entitlement of the deceased’s issue is unaffected by the survival of the deceased’s parents). See Section 7 of the ISA for the remaining rules as to priority. In particular, where there are no surviving heirs with entitlement under these rules, the whole of the intestate’s estate devolves to the Singaporean Government.
The AMLA sets out the order of priority for entitlement to apply for letters of administration upon the intestacy of a Singapore domiciled Muslim (see Part VII of the AMLA for further details). It also states that distribution shall be effected in accordance with Muslim law. Matters of Muslim succession law do not fall within the jurisdiction of the Syariah Court established in Singapore under Part III of the AMLA and as such the Singaporean courts retain their jurisdiction. Section 113 of the AMLA provides that in all applications for letters of administration (and for probate) the affidavit supporting the application must state the school of Muslim law to which the deceased professed.
Section 114(1) of the AMLA provides a list of seven literary authorities which the court may refer to in determining questions of Muslim succession and inheritance law. According to such authorities, a husband is entitled to half of his wife’s estate if there are no children. Where there are children, the husband is entitled to one quarter. Conversely, a surviving wife is entitled to one quarter of her deceased husband’s estate where there are no children; where there are children, surviving wives are entitled to one-eighth of the estate. In the absence of surviving children, the deceased’s siblings are the next entitled. Unlike under the ISA, adopted children are not entitled under Muslim law.
11 If a Will is valid, can someone who feels they have been inadequately provided for bring a claim?
Yes. A disappointed party may make a claim for reasonable maintenance under the Inheritance (Family Provision) Act (Cap 138) (the “I(FP)A”). The applicant must show that the disposition of the deceased’s estate as affected by his/her Will (or the law relating to intestacy, or both) fails to make reasonable provision for the maintenance of the applicant.
Section 3 of the I(FP)A limits the entitlement to apply under the Act to the deceased’s spouse, an unmarried or incapacitated daughter or an infant or incapacitated son. Like the ISA, the I(FP)A allows for the entitlement of adopted children. However, notwithstanding the fact that illegitimate children are not explicitly excluded under the I(FP)A, it is thought that only legitimate children would be entitled to apply.
Subject to the courts’ right to extend the period, applications must be brought within six months of the date upon which representation with regard to the deceased’s estate is first taken out. No application can be made where the surviving spouse is entitled to not less than two-thirds of the net estate and the only other dependants are the children of the spouse.
The provisions of the I(FP)A do not apply to the estates of deceased Muslims.
12 Is there inheritance tax (or equivalent such as stamp duty) in your jurisdiction?
No. This was abolished by the Estate Duty (Abolition) Act 2008 for deaths after 15 February 2008.
13 Does your jurisdiction recognise trusts or other separation of legal and beneficial ownership?
14 Is your jurisdiction a party to the Hague Convention on the Law Applicable to Trusts and on their Recognition?
15 Does a professional executor or trustee (or equivalent) in your jurisdiction require a licence?
Under Section 3 of the Trust Companies Act (Cap 336) (the “TCA”), it is a criminal offence for any person to carry on any trust business or hold themselves out as carrying on any trust business in or from within Singapore (regardless of whether the trusts are established under Singaporean law), unless that person is a licensed trust company. The following activities constitute trust business for the purposes of the TCA:
(i) The provision of services with respect to the creation of an express trust;
(ii) Acting as a trustee in relation to an express trust;
(iii) Arranging for any person to act as trustee in respect of an express trust; and
(iv) The provision of trust administration services in relation to an express trust.
Schedule 2 of the TCA provides that the prohibition in Section 3 of the TCA does not apply to bare trustees, trustees or administrators of a business trust, the trustee-manager of a registered business trust, a person preparing/advising on a Will or a person acting as the executor/administrator of a deceased person’s estate.
In addition, Section 15 of the TCA and Regulation 4 of the Trust Companies (Exemption) Regulations (Cap 336) provide exemptions for, inter alia, banks and merchant banks regulated by the Monetary Authority of Singapore (the “MAS”), lawyers and accountants, private trust companies, overseas persons and trustees of collective investment schemes approved under the Securities and Futures Act (Cap 289).
An application for a trust business licence must be made to the MAS. The MAS will not grant a trust business licence to an applicant unless that applicant is either a company incorporated under the Singapore Companies Act (Cap 50) or a foreign company registered under Division 2 of Part XI of that Act. 
16 What are the duties of a trustee (or equivalent) in your jurisdiction?
General duties of a trustee can be found in common law but reference should be made to the terms of the instrument creating the trust. Some of the general duties include:
(i) Duty to familiarise himself with the terms of the trust and the state of the trust property;
(ii) Duty to inform potential beneficiaries;
(iii) Duty to keep accounts and supply information;
(iv) Duty to act impartially as between beneficiaries;
(v) Duty to invest;
(vi) Duty to distribute; and
(vii) Fiduciary duties (e.g. duty of no conflict and duty of no profit).
Section 3A of the Trustees Act (Cap 337) (the “TA”) imposes a statutory duty of care on trustees when exercising any investment-related powers or the power relating to land, when appointing agents, nominees or custodians and when compounding liabilities, insuring trust property and carrying out audits and valuations. 
The statutory duty requires the trustee to exercise such care and skill as is reasonable in the circumstances having regard to:
(i) Any special knowledge/experience the trustee has or holds himself out as having; and 
(ii) If he acts as professional trustee, to any knowledge/experience that may reasonably be expected of a person acting in that kind of profession.
The common law duty of care remains relevant to the exercise of the trustee’s other powers. The standard of care required is that of an ordinary prudent businessman. Again, a higher standard is imposed on trustees acting in a professional or specialist capacity.
17 In what circumstances can a trustee (or equivalent) be removed?
In addition to any express removal provisions in the trust deed, Singapore follows the position in England and Wales that a trustee can be removed by the court for the welfare of the beneficiaries and to ensure the proper execution of the trust. It has been held that acts or omissions which are sufficient for the removal of trustees must be such as to:
(i) Endanger trust property;
(ii) Show want of honesty or want of reasonable fidelity; or
(iii) Show a want of proper capacity to execute his duties.
However, this list is not exhaustive and there is also authority to suggest that the court can substitute paid trustees, irrespective of whether any breach of trust has occurred, where all the beneficiaries so desire, and where the change would result in a substantial saving to the estate.
In addition, there are statutory powers under Section 37 of the TA to substitute a trustee where the trustee has passed away, remains outside of Singapore for more than 12 months, refuses or is unfit or incapable to act or is an infant.
18 To what extent can a trustee limit its liability in a trust deed?
The trust deed may exempt trustees from liability for all breaches of trust except fraud. The term “fraud” has been deemed to mean the failure to act in good faith and in the honest belief that the actions taken were in the interests of the beneficiaries. However, it has been held (by the English courts) that solicitor-trustees may not be exempted, despite acting honestly and in good faith, where their perception of the interests of the beneficiaries was so unreasonable that no reasonable solicitor-trustee could have held such belief. Commentary suggests that the Singapore courts would be likely to follow such a principle.
A trust deed may also limit the scope of a trustee’s duties as well as provide for an extension of their powers.
19 How can a trustee protect itself if it needs to bring or defend proceedings?
Where a trustee is proposing to engage in litigation (either defending or pursuing) it can – by way of a Beddoe application – apply to the court to determine the appropriateness of it taking such action (see section nineteen of the Hong Kong Chapter).
20 What regime is there in your jurisdiction if someone loses capacity e.g. a Guardianship Board?
Where a person (over the age of 21) has been declared to lack mental capacity in relation to his personal welfare or property and affairs, the court has the power to make a decision on that person’s behalf in relation to those matters or to appoint a deputy to make such decisions. A decision by the court is to be preferred to the appointment of a deputy and the powers given to a deputy should be limited in scope and duration. In addition, the appointment of the parents or guardian as deputy is to be preferred to the appointment of any other person.
A person is deemed to lack capacity if he is unable to make a decision for himself in relation to a matter due to an impairment of, or a disturbance in, the functioning of the mind or brain.
See Parts II and V, in particular, of the Mental Capacity Act (Cap 177A) for further details.



For further information, please contact:

Maurice Burke, Partner, Herbert Smith


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