6 reasons why the wishes in your will might not be followed

The erupting family feud between the relatives of Singapore’s late founding leader Mr Lee Kuan Yew regarding the demolition clause in his last will has drawn much public attention. Many Singaporeans have opined that Mr Lee’s last wishes, as evident in his last will, should be fulfilled and have expressed unhappiness with suggestions of gazetting the 38 Oxley Road property as a national monument.

The unravelling of this situation had led some to be confronted with questions regarding when the explicit intentions stated in one’s will might not be followed upon one’s passing. This article seeks to clarify instances where one’s penned intentions in the form of a will, might not be given effect to.

1. When the will is contested

Children of the deceased person can contest the validity of the will. A will would be invalidated when it does not comply with the required formalities or if it is proven that at the time of making the will, the deceased was of unsound mind or subject to undue influence. Our previous article on “How do I contest a will?” will give you more details on this.

Hence, while the law mandates that a beneficiary himself cannot be one of the two required witnesses to the executing of the will, that does not mean that beneficiaries’ or relatives’ involvement in the will preparation and execution makes the will an invalid one. This is why it is not uncommon to find lawyers within the family preparing the required documents needed for creating a will.

2. When the will is invalid

When the will is invalidated by a court order, the deceased’s assets will not be distributed according to the will. Instead the deceased’s assets will be distributed according to the Intestate Succession Act.

3. When laws or other government policies change

Since wills are regulated by the Wills Act in Singapore, wills need to be proven to be valid based on what is stated in the Act. Hence, any subsequent changes in the law or policy could affect whether or not the clauses in a will can be given effect to when someone passes away.

In the rare cases of demolition clauses, where one states he would like his property to be demolished after his death, the final verdict seems to lie in the hands of the government. Under the Preservation of Monuments Act in Singapore, the decision to gazette a monument is at the discretion of the National Heritage Board, guided by the Minister of Culture, Community and Youth.

Hence, it is not the exclusive choice of an individual and the owner of a property (or his beneficiaries) might not be able to resist the gazetting of the property especially if it is deemed to be a site of paramount importance to Singapore’s history or cultural heritage.

4. When inadequate money is set aside for one’s dependants

Another situation where the wishes in one’s will might not be fulfilled, is when the will made does not adequately provide for the deceased’s dependants. The Inheritance (Family Provision) Act in Singapore allows dependants of the deceased person in such situations to apply to the court for a reasonable provision of maintenance from the deceased’s estate. The Act confines “dependant” to

  1. A wife or husband;
  2. An unmarried daughter or a daughter who suffers from a mental or physical disability
  3. An infant son; or
  4. A son who suffers from a mental or physical disability.

Hence, in this regard, it is possible that despite what is explicitly stated in one’s will, the court can intervene in how one’s estate is subsequently distributed after one’s death.

5. When the asset is under a joint tenancy

Generally, married couples usually purchase their properties as joint tenants whereas co-investors in a property might prefer to purchase property as tenants-in-common.

Under joint tenancy, a joint tenant is not allowed to make a gift of his share of the property through a will when he passes on. This is because any property purchased by two or more parties as joint tenants operates based on the law of survivorship. In other words, when a person who owns a property as a joint tenant passes on, his share of the property is inherited solely by the remaining tenant.

As a result, any such property included in a will is not valid as a gift. Unfortunately, this is a common mistake amongst those who draft their own wills.

6. When the asset is a joint bank account

Typically, upon death of one of the account holders, the bank will automatically give the account balance to the surviving account-holder(s) once the required documents are presented and the account is closed (provided the joint account is not pledged to a liability of the bank such as an overdraft).

Where there are more than one surviving joint account holders, the bank will proportionately allocate the balance among them. Hence, a clause in one’s will which allocates the remaining funds in a joint account to other beneficiaries will not be given effect to.