A Will is a very important document. A person making a Will (a ‘testator’) sets out how they want their belongings and money to be dealt with after death. They will also specify the individual responsible for enacting what the Will says – called the executor. We use the term ‘estate’ to describe all the deceased’s property in various forms, including all assets and liabilities.
Wills are designed to avoid conflict and disagreement, but sometimes this isn’t always easy. Some parties with an interest in the deceased’s estate may think the Will is unfair, for example. The Courts won’t set aside a Will just because someone is unhappy with it; if they are satisfied it is a valid Will, they will rule that it should be enforced.
But sometimes there are situations when a Will can be contested. This article explores when, how, and who can do it.
Who Can Contest A Will?
If an individual has an interest in the Will, or was dependent on the deceased person in some way, then they may contest the Will. For example, spouses can challenge a Will if they depended on the deceased financially, or if the deceased was legally obliged to support them. Most often, a beneficiary will challenge a Will when they think it doesn’t properly reflect the testator’s wishes; they believe they should inherit more, or they think they are entitled to more maintenance payments if they are dependents.
The term ‘contesting’ a Will means that you are challenging its validity or its terms; you are saying that the distribution of estate should be different to what the Will states.
On What Grounds Can Someone Contest a Will in Singapore?
The Will is invalid (not witnessed properly, or not signed)
The Wills Act states the formalities that a Will must follow when it is made, otherwise it may be invalid. These requirements are that:
- It is made in writing
- It is signed by the testator
- The testator is aged 21 years or more
- The testator’s signature was witnessed by two or more people, who also signed the Will while the testator was present.
- Neither witness is a beneficiary of the Will, nor are either of them the testator’s spouse.
To ensure all these requirements are followed, it’s important to use an experienced Wills lawyer to help you prepare your Will. If you don’t follow these requirements, your estate may have to be distributed following the Intestacy Rules, which may be very different from your own wishes.
The Will was made fraudulently
Sometimes a testator or their estate can be the victim of a fraudulent Will. For instance, someone misled the testator into signing a Will they have made, and the testator does so, thinking it’s a different document.
Another example is where a fraudster forges a signature on a Will they have made, or they alter the testator’s Will to their own wishes.
The Will was made under undue influence
This is a common ground on which a Will is contested. A Will can be challenged if someone believes that the testator was forced, or in some way persuaded, to make a Will that doesn’t represent their true intentions.
This can be hard to prove. The person challenging the Will has the burden to prove the undue influence – they are the ones who need to show that someone unduly influenced the testator’s mind, so that the Will was not voluntarily approved.
The testator was of unsound mind when they made the Will
Sometimes, a person with an interest in the Will may argue that the testator lacked mental capacity at the time they made the Will. For instance, they may say the testator had dementia (a medical condition which impairs someone’s ability to think, remember or make decisions).
Whether their mind was unsound temporarily or permanently does not matter; therefore, someone under the influence of alcohol or drugs will also lack capacity to make a Will.
What is the Procedure for Contesting a Will?
The way in which you contest a Will depends on the status of the deceased’s estate:
Contesting a Will before Grant of Probate: you should declare your interest in the estate by filing a court caveat. In effect, this is the court notifying you of an issued grant. Whilst the court considers your challenge to the Will, the distribution of the estate will be paused.
Contesting a Will after the court issues Grant of Probate: within six months of the date the court issued Grant of Probate, you must contest the Will. In certain situations the court can extend this time period, for example if an additional Will or codicil is discovered which significantly alters the distribution of the estate. Other reasons for making an application out of time can occur, but you must give your substantive reasons for doing so.
To begin the contesting procedure, you should start a probate action. This begins with a writ, issued by the Registry of the Family Justice Courts. In it, you should set out the grounds on which you are contesting the Will, and state why you think the grounds are satisfied.
After this, the court will then set a hearing, where it will rule on your claims against the Will.
If a Grant of Probate has already been issued by the court, you may only obtain a writ once a citation is filed, in the form of an affidavit against the person who the grant was issued to.
If the claim to contest the Will succeeds, the court will order the assets to be returned to the executor for redistribution. (If the assets are still held by the executor, they will use the Intestacy Rules to distribute them).
What if a Will doesn’t adequately provide for dependents?
In Singapore, the law states that the following individuals may be a testator’s dependents:
- A husband or wife
- An unmarried daughter who can’t maintain herself because of a mental or physical disability
- An infant son
- A son who can’t maintain himself because of a mental or physical disability.
Where a court is satisfied that the Will doesn’t make adequate provision for the dependant (they aren’t named in it for example, or they have an insufficient share) the court can make an order that a lump sum, or periodic payments, must be made to the dependents.
Once six months has passed from the issuing of the Grant of Probate you can apply for maintenance. Maintenance is sometimes a better option than contesting a Will. It is often cheaper and less stressful, and so puts less strain on the relationship between beneficiaries.
What happens when a Will is successfully contested?
If your challenge to the validity of a Will succeeds, then the distribution of the deceased’s estate will be done under the Intestate Succession Act, rather than according to the Will. Alternatively, the estate might be distributed according to an earlier Will.
Seek legal advice if you wish to challenge a Will
As experienced lawyers in this field, we would be happy to help if you want to contest a Will. With good legal advice, you can easily decide whether you are eligible to bring the claim, and we’ll help you to know your rights and the options available to you. Having legal representation through such a challenging process can be a huge benefit.
We also act for clients who are preparing their own Wills and what happens to their estate after their death. Our lawyers can show you how to best approach providing for your dependents, and how to distribute your estate.