7 Mistakes to Avoid When Making A Will

Making a will is undoubtedly one of the most important steps in ensuring that your assets are distributed according to your wishes after you pass away. Yet, many people make critical mistakes when drafting their wills, leading to unintended complications, disputes among loved ones and sometimes costly legal battles.

What is a Will? Why is It Important to Have a Will?

A will is a legal document that specifies how your assets and estate should be distributed upon your death. It allows you to appoint an executor (i.e. the person responsible for carrying out the wishes of the deceased as outlined in their will) and designate beneficiaries (persons who will receive or benefit from the deceased’s estate). A will also allows you to set out specific instructions regarding how or when to handle your assets/possessions, and specify your own funeral arrangements.

Having a well-drafted will is key to carrying on your legacy. It ensures that your loved ones are taken care of and that your estate is handled according to your wishes on your demise. Without a will, your estate will be subjected to distribution based on intestacy laws, which may not align with your actual intentions.

In this article, we discuss seven critical mistakes people make when drafting their wills:

1. Appointing multiple executors
2. Drafting only a will
3. Not being specific about items with sentimental value
4. Not updating your will to reflect life changes
5. Not considering the consequences of the bequests you are making
6. Not leaving instructions about where to find your will
7. Not working with an experienced estate lawyer

By being aware of these pitfalls, you can take the necessary steps to ensure your estate is handled in accordance with your intentions.

What are the 7 Mistakes to Avoid When Making a Will? 

1. Appointing multiple executors

One key consideration in making a will is who you would like to appoint as your executor or executors. While it may seem like a good idea to appoint multiple executors (e.g., two children or a few siblings) to share the responsibilities of carrying out your wishes according to your will, this could lead to conflicts and delays in estate administration. For example, if the will is not clear on whether an asset (i.e. a property) should be sold, demolished or transferred, one co-executor may wish to sell the asset while another refuses, leading to a potential legal dispute.

To prevent such a scenario from happening, it is good practice to appoint a single executor for efficiency but designate alternative executors in the event that your primary choice of executor is unable to fulfil their duties, for example, due to death or illness. If two or more executors are appointed, you will need to ensure that both executors can cooperate to carry out the administration of your estate efficiently. A common example is in wills involving minor beneficiaries, where one executor is appointed as the trustee to hold the assets on trust for them until they reach the age of majority, while the other executor is responsible for administering the deceased’s estate in general.

You may wish to read our other article for detailed guidance on how to choose an executor for your will.

2. Drafting only a will 

In drafting your will, you should ensure that what is stated in your will regarding your assets is aligned with the legal documentation of these assets. One consideration is to ensure that you hold sole legal title to the assets you wish to distribute or sell. For example, if your will states that you wish for your home to be transferred to your spouse, but the property is jointly owned by a relative or someone else, conflicting legal claims may arise. This is because joint owners of a property have equal rights to the property, and the right of survivorship applies such that the surviving co-owners of a property would automatically inherit the deceased co-owner’s share.

Another common error is failing to update beneficiary designations on financial accounts (e.g., bank accounts, investment accounts, property titles) to align with what is stated in your will. You should ensure that there is no pre-designated beneficiary in the paperwork for these assets and that the beneficiaries are identical to those reflected in your will.

An important exception to note is that monies in a Central Provident Fund (CPF) account cannot be distributed under a will. Instead, the monies in the deceased’s CPF account will be distributed by the CPF Board according to the instructions and proportions stated in the deceased’s CPF nomination form, notwithstanding any provisions in the will.

If the deceased did not make any CPF nomination or an invalid CPF nomination, then their CPF savings will be transferred to the Public Trustee’s Office (PTO) under the law. The Public Trustee is an office under the Ministry of Law that can act as a trustee to administer the estates of deceased persons (especially those with assets under $50,000) and distribute them to beneficiaries.

A CPF nomination may be rendered invalid if, for example, you get married after making a nomination and do not update your nomination. This is because any nomination made before marriage is automatically cancelled upon marriage. After the deceased’s CPF savings are transferred to the PTO, an application then has to be made to the PTO to distribute the deceased’s CPF monies in accordance with the Intestate Succession Act. Distribution of assets under the Intestate Succession Act follows an order that begins with the deceased’s spouse and children, and then to parents, siblings, and other relatives.  It follows that intestate distribution may be a complex and tedious process which may not align with the intentions of the deceased. Hence, it is crucial to engage an experienced estate lawyer who can ensure that these nuances are accounted for.

3. Not being specific about items with sentimental value

It is not uncommon for disputes to arise over sentimental possessions, such as jewelry, paintings, antiques or family heirlooms. If your will is silent or vague about these items, disputes may arise when family members disagree on who is entitled to them.

It is therefore good practice to list out the specific items, their intended recipients and how much of it they are entitled to clearly in your will. If you prefer certain possessions to be sold or donated, instead of distributed among your loved ones, this should also be stated explicitly in your will.

4. Not updating your will to reflect life changes

During the course of your lifetime, it is expected that several events may happen to you, your family and the people around you. Major events like marriage, the birth of children and divorce should prompt you to rewrite your will, to avoid the will being outdated or insufficient. In the following sub-sections, we highlight some of the common considerations to take into account when navigating certain life events.

Marriage and divorce

If you get married or remarry, your will may be nullified or cancelled, unless your will was made in contemplation of your marriage, i.e. the will contains adequate provisions relating to when the testator gets married. On the other hand, if you get divorced, this does not automatically cancel your previous will, hence any assets to be given to your ex-spouse under your old will remain valid unless a new will is drafted to revoke your old will.

Children

The arrival of new family members (such as children, grandchildren or nieces and nephews) may also necessitate changes to your will if you intend to include them as beneficiaries. If you intend to provide for children outside of marriage i.e. illegitimate children, this must be stated clearly in your will. This is because Singapore law does not entitle illegitimate children from receiving a share of the parent’s assets if there is no will, unless there is no other legitimate child left behind. This applies similarly to step-children.

Death

If an individual named in your will passes away, a revision to your will may be required as this may affect the proper distribution of your assets.  For example, if you name your children as beneficiaries but one passes away before you, failing to update your will could mean there would be no inheritance for that deceased child or their next-of-kin. This can be avoided by including a predeceased clause providing for such an event, stating what happens to the inheritance if one of your beneficiaries predeceases you. Likewise, if your appointed executor in your will predeceases you, the will should be updated or include a provision to cater for an alternative or replacement executor in such an event.

A will should evolve as your life circumstances change, and it is important to have regular reviews with your lawyer to see if your will needs to be updated to account for these changes.

5. Not considering the consequences of the bequests you are making

While your intentions may be well-meaning when drafting your will, certain inheritances can lead to unintended consequences such as potential for abuse or mismanagement. For example, an elderly beneficiary with diminished mental capacity may struggle to manage a substantial inheritance. Such beneficiaries are also vulnerable to abuse or pressure by others to give up or manage their inheritance in a way that may not align with the testator’s wishes.

Depending on the specific risks, you can consider including safeguards in your will. For example, this can include creating a trust or appointing a testamentary trustee or guardian for vulnerable beneficiaries. For beneficiaries with a history of financial mismanagement, you may consider providing for staggered or periodical payments or specifying how the inheritance is to be used.

If you are aware that there is ongoing resentment between your intended beneficiaries and you do not intend to grant them equal shares, it is important to state the proportions of distribution clearly in your will. If necessary, an acknowledgement or affirmation that you intend for the distributions to be unequal can also be included in the will.

The High Court case of UWF v UWH illustrates the importance of considering how your bequests might be perceived and ensuring that your intentions are clearly documented to prevent potential disputes. In that case, a wealthy widow’s will was contested by two of her children who received smaller inheritances, on the basis that she lacked testamentary capacity and was unduly influenced by their siblings. The court upheld the will, finding that the widow had valid reasons for the unequal distribution.

It is hence important to be mindful of the mental states and financial literacy of your beneficiaries to ensure that your estate does not end up mismanaged or misused.

In the case of minor beneficiaries – it may be necessary to consider including specific instructions in your will to ensure that the executor holds the estate on trust on behalf of the beneficiaries until the beneficiaries reach a certain age or life event (e.g. the age of majority of 21 years, university graduation or marriage) before they can receive the inheritance. This is because minor beneficiaries in Singapore are unable to claim any inheritance left to him/her by a deceased person until he/she reaches the age of 21. It is also important to consider that your minor beneficiaries may not have the financial maturity or literacy to handle a large inheritance sum, which can result in reckless expenditure that may be contrary to your wishes.

6. Not leaving instructions about where to find your will

A will is only useful if your executor can find it. In order for the wishes in your will to be carried out, your executor must possess or have access to your will to apply for a Grant of Probate, which is a court order allowing your executor to administer your estate.

If your will is lost, misplaced, or inaccessible, your estate may be subject to and distributed according to intestacy laws instead. This may result in disputes over your estate if your intended beneficiaries are not those provided for under intestacy laws.

It is, therefore, crucial to store your will in a secure location that is made known to your executor, or you can safekeep it with a trusted law firm. Alternatively, you may safekeep it in your possession with clear instructions to your executor on where to locate your will and how to access it when the time comes.

For further guidance, you may wish to refer to our other article on where to store your will in Singapore.

7. Not working with an experienced estate lawyer

Estate planning can be a complex and continuous process which many people underestimate. A poorly drafted will can lead to unintended issues or legal disputes. Some people may be tempted to commit the mistake of using generic templates from the web or relying on inexperienced lawyers who are not well-versed in estate planning to draft their will. In addition to confidentiality and ethical considerations, the increasing use of artificial intelligence tools to assist in drafting wills also carries a high risk of inaccuracy and unreliability. This is because artificial intelligence cannot assess unique family relationships and dynamics, the mental and financial literacy of beneficiaries and may be based on outdated laws. These shortcuts, while quick and less costly, can result in ambiguous or legally invalid wills.

In a noteworthy case involving a million-dollar inheritance, a dispute revolved around a will drafted by a Malaysian lawyer which sought to supersede a previous will drafted by the deceased. The Malaysian lawyer in that case was unfamiliar with Singapore’s legal framework governing the preparation, execution, and witnessing of a will, resulting in the new will being invalidated. As a result, the entirety of the deceased’s estate was vested in the children of the deceased, instead of the grandchildren which the new will purported to give.

In addition to engaging a qualified estate lawyer, it is also important to ensure that the estate lawyer is reliable when it comes to ensuring the formal legal requirements are met when executing a will. In a 2015 case in Singapore, the deceased executed two wills – one in 1990 and another in 2005. However, the new will was held to be invalid because it was witnessed by only one person instead of the two required under section 6(2) of the Wills Act. This oversight by the lawyer who drafted the will resulted in the estate being distributed according to intestacy laws, contrary to the testator’s wishes. The lawyer and his firm in that case were found to be professionally negligent in failing to supervise the proper execution of the will, and liable to pay the beneficiaries the difference between what they would have inherited under the 2005 will and what they would have inherited under intestacy laws.

Such cases illustrate the importance of working with a qualified and experienced estate lawyer who specialises in wills and estate planning, so to ensure your will is legally practicable and valid.

—

As highlighted in this article, a poorly drafted will may result in costly legal battles, emotional stress for loved ones, and unintended outcomes for your estate. Avoiding these common pitfalls can help ensure your will is clear, legally valid, and free from potential disputes. A well-drafted will provides peace of mind, knowing that your loved ones will be taken care of according to your wishes.

If you need expert guidance, you may wish to reach out to our top-rated wills & estate planning lawyers who can assist you with providing legal advice and assisting with drafting a comprehensive will that protects your estate and beneficiaries.