How to Contest a Will in Singapore (Grounds and Procedure)
The instructions in a will is an important factor in determining how the estate of a deceased loved one will be distributed. However, it is not unheard of for people to come forward with claims that the will is invalid, or dispute the portion of the deceased’s estate that has been left to them. This is known as contesting the will.
In this article, we will cover the following topics to best prepare and inform you about the processes behind contesting a will in Singapore:
What Does Contesting a Will Mean?
Contesting a will refers to challenging its terms and/or validity. Whether it is the suspicion that you are not receiving the proper amount the deceased has set aside for you, or that the will had been made under duress or other reasons, you may choose to contest the will to stop it from being executed.
If the will is found to be invalid by the court, the deceased is deemed to have died intestate (without a valid will), with their estate to be dealt with as such. In this situation, the deceased’s estate will be distributed according to the rules under section 5 of the Intestate Succession Act (ISA) instead of the instructions in their will.
What are the Grounds You Can Contest a Will On?
It is a fundamental principle that a testator has full autonomy over the distribution of their assets. As a result, a testator’s will should be a true and accurate depiction of their last wishes.
Hence, if there is reason to believe that the will does not accurately reflect the testator’s last wishes, then the will may be able to be successfully contested.
Some grounds on which a will can be contested include when:
- The will was not validly made;
- The will was made by fraud;
- The testator did not have the mental capacity to make the will;
- The testator made the will under undue influence;
- The lawyer who drafted the will made a mistake or misconducted themselves while doing so.
The will was not validly made
Under the Wills Act, there are numerous legal requirements to be complied with for a will to be deemed valid. These requirements are:
- The will must be committed to writing;
- The testator must be at least 21 years old;
- The testator must sign the will at the foot of the will;
- The testator’s signature must be witnessed by two or more witnesses, who must also sign the will in his presence; and
- The two main witnesses cannot be beneficiaries of the will, or spouses of the beneficiaries.
The will may be found invalid if it can be proven that any of these requirements had not been complied with when the will was made.
The will was made by fraud
For a will to be considered valid and true, a testator must be aware that they are signing a will and that the will reflects their genuine wishes at the time of their signing.
However, a testator may be tricked into signing a will if they are under the impression that they are signing a different document. For instance, a will could be presented as a medical document or deed to induce the testator to sign it.
Another form of fraud is will forgery. Forgery includes copying a person’s signature or altering a document without the authority to do so, and can constitute a criminal offence.
A will created through forgery (such as if the testator’s signature on the will had been forged) cannot be valid as it had not been executed with the testator’s proper consent and knowledge.
The testator did not have the mental capacity to make the will
Testamentary capacity is defined as the ability to understand the effect of a will. When creating a will, a testator must possess testamentary capacity for their will to be considered valid.
In this case, if you are to argue that the deceased did not have the testamentary capacity to create a will, it is essential to prove their mental incapacity at that time.
Mental incapacity, as defined by the Mental Capacity Act, is the inability to make a decision for oneself as a result of impairment to the brain. It does not matter if the impairment is permanent or temporary, as long as it had affected the deceased at the time of the creation of the will.
This can be done through evidence of a doctor’s diagnosis or assessment that was conducted around the period the will had been created.
In December 2020, two siblings who received smaller inheritances compared to their other siblings contested the validity of their deceased mother’s will. They cited her bipolar disorder as a mental incapacity that rendered her will invalid. However, the court ultimately dismissed this claim before concluding that the testator did indeed have testamentary capacity when making her will.
It was revealed that their mother’s bipolar disorder was in remission at the time of the creation of her will and did not affect her decisions when distributing her assets. The court also delved into the distant relationship between the mother and her children and provided perspective and explanation for her position in giving the disproportionate amounts.
The testator made the will under undue influence
Undue influence is also a ground for contesting a will. It refers to a dishonest attempt at manipulating a testator to make a different version of their will from the one that they would otherwise have made.
For example, a person may use tactics such as coercion or threats to manipulate a testator into inserting a clause that gives them a bigger share of an estate. It would not have been the testator’s genuine intention to distribute their estate in such a way.
This scenario also further reinforces the importance of having trustworthy witnesses around during the making and signing of a will.
The lawyer who drafted the will made a mistake or misconducted themselves while doing so
A lawyer holds an important job of best translating and relaying the testator’s wishes when drafting the testator’s will. This is because be it a careless mistake or intentional manipulation, any error in the wording of the will may not accurately reflect a testator’s intentions and may lead a person to contest the will.
When a lawyer draws up a defective will, they may be found liable for negligence to the potential beneficiaries. For example, if a testator instructs their lawyer to make a provision to bequeath $10,000 to their son, and the lawyer negligently failed to do so, the son may be able to sue the lawyer for negligence.
A lawyer may also misconduct themselves when drafting a will. In a more well-known case of the dispute between the Lee siblings over the late Mr Lee Kuan Yew’s will, Mrs Lee Suet Fern, the daughter-in-law of Mr Lee, and a lawyer with 37 years of experience under her belt, was found guilty of gross misconduct over her handling of Mr Lee’s last will.
This was for reasons such as:
- Mrs Lee had sent Mr Lee a draft of a will that she stated to be reflective of his testamentary wishes, even though she was in no position to confirm this and had not done so
- Mrs Lee’s husband was a significant beneficiary under the will, which posed a threat of conflict of interest with respect to her ability to put Mr Lee’s interests above anyone else’s
- Despite the above, Mrs Lee allowed Mr Lee to execute the will, and also despite knowing that the only person who could verify Mrs Lee’s statements about the will to Mr Lee, namely Mr Lee’s usual lawyer Kwa Kim Li, had been excluded from the process
Although Mrs Lee had not been acting as Mr Lee’s lawyer when such misconduct occurred, the court found that this did not excuse her from acting in a way that fell short of her professional duties as a qualified lawyer in Singapore. Mrs Lee was accordingly suspended from practising law for 15 months.
How Do You Contest a Will in Singapore?
A long as you are a beneficiary of the will, you may contest it.
The course of action you should take depends on whether a Grant of Probate has been issued. This is a document issued by the court to signify that the executor of the will has the legal authority to handle the deceased’s estate according to the instructions in the will.
Before a Grant of Probate is issued
If you are planning to contest a will before a Grant of Probate has been issued, you may want to file a caveat in court. When you do so, you are declaring that you have an interest in either a challenge against a will being made, or in the estate.
In addition, no Grant can be issued without your knowledge, effectively halting all probate proceedings for the distribution of the estate until your challenge against a will is resolved.
After a Grant of Probate is issued
On the other hand, if a Grant of Probate has already been issued, it is crucial that you contest the will within 6 months of the Grant’s issuance. Should you decide to contest the will beyond this 6 month-window, you will be expected to provide a substantive reason for the lapse. The court will then have the discretion to determine if and how to proceed with your claim.
To commence your contest against a will, you should start a probate action. This proceeding is initiated by a writ that must be issued by the Registry of the Family Justice Courts under rule 253 of the Family Justice Rules (FJR).
The writ must also be endorsed with a statement that describes your situation. If you are alleging that a third party has interfered with the drafting of the will, you should include their involvement in the writ as well.
Unless the matter is settled out of court, the filings and procedures will eventually culminate in a trial for the court to decide on your claims against the will.
It is important to note that if the Registry has previously already issued a printed Grant, a writ can be obtained only once a citation by way of an affidavit under rule 258 has been submitted against the person to whom the Grant is issued.
In this case, the citation may inform the person who has been issued the Grant of Probate that such a Grant is being disputed, and require that person to bring the Grant to the Registry so that it can be dealt with.
If a will is successfully contested, but the deceased’s assets had previously been distributed by then, the court will instruct for them to be returned to the executor so they can be properly redistributed.
Otherwise, if the deceased’s assets have not been distributed, the court will proceed to distribute them according to section 5 of the ISA.
What is an Alternative to Contesting a Will When You Think You May have been Short-Changed?
Contesting a will is no easy feat and, like any other situation, holds various issues you should consider when deciding whether to go ahead.
For one, from the costs of hiring a contentious probate lawyer to forking out even more money for mandatory court filings, you can expect some potentially high costs. Such a process is also bound to be time-consuming and may take a toll on your well-being and strain your relationship with the other beneficiaries as well.
It may also be tricky when you try to obtain evidence for your case, once again exerting an added stress on you as you look to best prove your position.
Hence, one alternative to contesting a will would be directly seeking maintenance.
Maintenance was made an available option as the law recognises and accounts for the scenario that a will or intestacy laws may fail to fully provide for a deceased’s dependants.
When you seek maintenance, you are essentially looking for better financial support from the estate for your welfare. This can be done by applying to the court to make an order to alter the distribution of the deceased’s net estate, from which the maintenance will be provided as well.
Note that only four groups of people can apply for maintenance from a deceased’s estate, namely:
- A wife or husband;
- A daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself;
- An infant son; or
- A son who is, by reason of some mental or physical disability, incapable of maintaining himself.
An application for maintenance must be filed within 6 months from the date on which a Grant of Probate for the deceased is first taken out. In other words, once a Grant of Probate is issued, you will have 6 months to apply for maintenance if you are eligible to do so.
Contesting a will is a complicated and delicate matter and may prove to be an even greater source of stress in your time of grief.
If you are planning to contest a will, it may be best to engage a probate lawyer. As a professional with expertise and experience in this field, a probate lawyer will provide objective feedback to you and know how to best present your case for your potentially tough probate battle ahead.
You may also be experiencing other will-related issues, such as if you are having disputes with an executor, where contesting a will may not be the ideal way forward. Instead. An experienced lawyer will be able to analyse these issues and advise you on possible options you can take for them.
To start your journey in finding the best probate lawyer for your case, you may want to read our guide on how to choose a probate lawyer.
Alternatively, download our free guide to will-making in Singapore:
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