Contents

1. Drafting a will..........................................................................................................................1
 Requirements for a valid will...............................................................................................1
 CONSTRUCTION OF WILL.....................................................................................................5
 Properties that canNOT BE DISPOSED OF...........................................................................5
2. Determining testamentary capacity.......................................................................................6
3. Intestate succession................................................................................................................7
 Who are “children”?............................................................................................................8
 “Half blood” and “whole blood” and priority of distribution..............................................8
 Rule 9 –bona vacantia.........................................................................................................9
 s 10: Partial intestacy...........................................................................................................9
 Distribution under intestacy succession rules: Section 7....................................................9
4. Probate proceedings.............................................................................................................11
5. Inheritance Family Provision Act (IFPA)................................................................................16
 The Court of Appeal in the past five years has handed down 2 major landmark decisions
in connection with the IFPA......................................................................................................18
o AAG v Estate of AAH deceased (2010)..............................................................................18
6. TESTACY VS INTESTACY.........................................................................................................19
7. Mental Capacity Act..............................................................................................................22


 Who can make a Will (S. 4, but see exception at Section 27)
 Formal validity of Wills (S. 5)
 Mode of execution of Will under WA (S. 6)
 Who can and who cannot be a witness to a will (S. 9, 10,11, 12)
 Who cannot be an executor (Minors – S. 21 PAA; Bankrupts - S.130, BA)
 Revocation of Wills (S. 13, 14, 15)
 Amendment of Wills (S. 16)
 Subsequent conveyance do not prevent operation of the Will (S. 18)
 Ambulatory nature of Wills (S.19)
 What if beneficiary predeceases the testator (S. 20, 23)
o What if beneficiary who predeceases is the testator’s child (S. 26, Re Loke Soh Lui);
o How to prevent failure (lapse) of a gift to a child who predeceases the testator where the child
leaves issue.
o Importance of distinguishing class gifts and gifts to a specified individual, to prevent lapse, and
to ensure that only the intended beneficiaries inherit the gift to the deceased child.
 Construction of gifts under Wills (S. 21, 24, 25, 26)

1. DRAFTING A WILL

• Requirements for a valid will

1
 Important so that probate of the will can be granted by the court after the testator dies

o s 4, WA: “No will made by any person under the age of 21 years shall be valid.”
 However, soldiers in actual military service, and mariners or seamen being at sea, may
make wills even though they are less than 21 years of age (s 27, WA).
o s 3, WA: What can be disposed of under a will?
 Subject to the provisions of this Act, every person may devise, bequeath or dispose of
by his will, executed in the manner required under this Act, all real estate and all
personal estate which he shall be entitled to either at law or in equity at the time of his
death.
o s 6, WA: 6(1) “No will shall be valid unless it is in writing and executed in the manner mentioned
in subsection (2).”
 “6(2) Every will shall be signed at the foot or end thereof by the testator, or by some
other person in his presence and by his direction
 And the signature shall be made or acknowledged by the testator as the
signature to his will or codicil
 In the presence of two or more witnesses present at the same time,
 And those witnesses shall subscribe the will in the presence of the testator,
but no form of attestation shall be necessary.
 (3) Every will shall, as far only as regards the position of the signature of the testator, or
of the person signing for him as mentioned in subsection (2), be deemed to be valid
under this section:
 If the signature shall be so placed at or after, or following, or under, or beside,
or opposite to the end of the will, that it shall be apparent on the face of the
will that the testator intended to give effect by such his signature to the
writing signed as his will;
 (4) No signature under this Act shall be operative to give effect to any disposition or
direction which is underneath or which follows it, nor shall it give effect to any
disposition or direction inserted after the signature shall be made.
 (X) Re Beadle
 Testatrix dictated to two friends the details of the will she wished to make.
The testatrix read the will through and signed on the top-right hand corner.
One of the friends also signed.
 Will was invalid since the formalities had not been observed, notwithstanding
the fact that the deceased's testamentary intention was not in doubt.
 (X) Nuncupative (oral) wills are not valid
 After the enactment of the WA, nuncupative wills were no longer valid except
in relation to persons coming within s 27, WA (Tan Pwee Eng v Tan Pwee Hua)
 Contra. Donatio mortis causa1
o Koh Cheong Heng v Ho Yee Fong: Operation of donatio mortis causa is
not precluded the prohibition of nuncupative wills in s 6 of WA.
o A donatio mortis causa is not a nuncupative will –but a sui generis
category of property dealing which is neither completely inter vivos
nor completely testamentary
o Testator must have testamentary capacity
 George Abraham Kathu v Jacob George, applying the “Banks v Goodfellow” test, and
Chee Mu Lin agreeing with George Abraham and also referring to the tests of mental
capacity set out in ss 4 and 5 of the Mental Capacity Act

1
3 conditions for a valid donatio mortis causa
1. Gift had to have been made in contemplation of impending death;
2. Gift had to have been made upon the condition that it was to be absolute and complete only on the donor’s death, such a condition being
express or implied from the fact that the gift was made when the donor was ill; and
3. Donor must have intended to part with dominion over the subject matter, and there must be delivery of the said subject matter (or
something representing it) which the donee accepted.

2
• OTHER THINGS SHOULD KNOW ABOUT A WILL
o Ambulatory nature of a will: s 19, WA
 Takes effect as if executed immediately before testator’s death, unless a contrary
intention appears by the will –no effect until the testator dies
 Therefore he may change/ revoke the will at any time before his death
 Unless mutual will with spouse: not so easy
o Who can be attesting witness: s 10, WA
 Cannot be beneficiary or beneficiary’s spouse (s 10, WA)
 Gifts to attesting witnesses or to wife /husband of attesting to be void
o Disregarded if will is duly executed w/o his attestation i.e. there are 3
witnesses to the execution
 But if when willl was executed, witness was not married to a beneficiary but at
the date of the testator’s death, the wtiness is a beneficiary’s spouse, s 10(1)
not applicable
 Ross v Caunters: solicitor did not advice that attesting witness must not be
beneficiary/spouse
o One attesting witness was spouse of beneficiary – gift was void.
o Beneficiary sued for negligence and succeeded
 Attesting witness must be able to “witness” the execution of the will by the testator –
must not be blind or visually handicapped to such a degree that he cannot see.
 Can be deaf, mute, have any physical impediments except that he
 Not a requirement but wise to require each witness to write his address and NRIC no
after his signature
o Attestation
 No special form of attestation is required by law, although in practice words should be
used to show that the Act has been complied with (s 5 WA).
 Procedure of obtaining probate of a will is easier if it contains a proper
attestation clause duly completed
 In a probate application, an affidavit of the attesting witness or other evidence may be
required where:
 Attestation clause is incomplete
 Will is undated
 Doubt as to the testator’s knowledge and approval of its contents
 Unattested interlineations, obliterations or alterations.
 Any other matters requiring explanation.
 Rule 211 of FJR: where a will contains an insufficient attestation clause (attesting
witnesses have not been properly described), the Registrar shall require an affidavit as
to due execution from (a) one or more of the attesting witnesses; or
 (b) If no attesting witness is conveniently available, from any other person who
was present at the time the will was executed.
 If no affidavit can be obtained as above, the Registrar may accept evidence on
affidavit from any person the Registrar thinks fit to show that the signature on
the will is in the handwriting of the deceased.
 The Registrar may, after considering the evidence, must if he is satisfied that
the will was not duly executed, refuse probate or may, if he is doubtful
whether the will was duly executed, refer the matter to the Court.
o Age and possible disqualifications of Executor / when to name new Executor
 Must be at least 21 years of age to be appointed (s 21 of the PAA)
 However, due to the ambulatory nature of a will, the client can appoint an
infant as executor since the will is only to be construed when the client passes
away

3
  Contra. Making of a lasting power of attorney, as donee has to be at least 21
years old at date of appointment.
 Cannot be bankrupt (s 130, BA)
 Bankrupt cannot be appointed as a personal representative (executor/
administrator), without leave of the High Court
 If at time of making the will, person named as executor is not bankrupt, but he
becomes bankrupt subsequently, the client is strongly advised to make a new
will/codicil appointing a different person as his executor.
 Mentally incapacited
 If the appointee as executor subsequently mentally incapacitated and unable
to accept appointment as Executor; the testator should make a new will
naming new and different executor(s)
o Amendments to will: s 16, WA
 Obliteration, interlineation or other alteration made in any will after the execution shall
not be valid (except so far as the words/ effect of the will before such alteration shall
not be apparent)
 UNLESS the alteration is duly executed by the signature of the testator and the
subscription of the witnesses be made
 In the margin/ some other part of the will opposite or near to the alteration
/at the foot or end of or opposite to a memorandum referring to the alteration
and written at the end or some other part of the will.
 (Not s 16, WA) If altered prior to execution, should be authenticated by
 Being referred to specifically in the body of the will or signature/initials of
testator and witnesses being placed on the will, usually in the margin, adjacent
to the alteration
o Revocation of previous wills
 Ways to revoke (s 15, WA)
 Will to be revoked by marriage: s 13, WA
o Unless the will is expressed to be made in contemplation of a
marriage, the will shall not be revoked by solemnization of the
marriage contemplated (s 13(2), WA)
 This applies notwithstanding that the marriage
contemplated may be the first, second or subsequent
marriage of a person lawfully practicing polygamy.
o If client is contemplating marriage, and it is clear that the client
wishes that the will remains valid after the marriage,
 I Declare that I make this Will in contemplation of my X
marriage to XXXXXXXXXXXXXXXXXXX, and that this Will shall
not be revoked by reason of the said marriage. I Further
Declare this Will shall be and remain effective if the said
marriage does not take place or it is not solemnized.
 Another will or codicil executed in the manner by this Act required (s 13(b))
 By writing declaring an intention to revoke it, and executed in the manner in
which a will is by this Act required to be executed (s 13(c))
 By burning, tearing, or otherwise destroying the will by testator (s 13(d))
o Or by some person in his presence and by his direction, with the
intention of revoking it
o R 214, FJR: Any appearance of attempted revocation of a will by
burning, tearing or otherwise, and every other circumstance leading
to a presumption of revocation by the testator, must be accounted
for to the Registrar’s satisfaction
 Revival of revoked will (s 17, WA)
 No will which is revoked shall be revived otherwise than by the re-execution

4
 thereof, or by a codicil executed in the manner required by this Act and
showing an intention to revive the will or codicil.
 When any will /codicil which shall be partly revoked, and afterwards wholly
revoked, shall be revived, the revival shall not extend to so much thereof as
shall have been revoked before the revocation of the whole thereof, unless an
intention to the contrary be shown.
 No will to be revoked by presumption from altered circumstances: s 14, WA
o Foreigner / person with assets overseas
 Ask if client has made will/s in other countries
 Should make will in every jurisdiction where he has substantial assets
 Where client has more than one will,
 Ensure don't inadvertently revoke the other wills made in overseas countries,
when his intention was merely to have a SG-made will made (which should
accordingly only revoke the previous SG will(s), and leaving the foreign will(s)
intact.
o Precatory words
 The use of precatory words (“wish and strong desire”) indicated that it is no more than
an expression of desire -court should also not strain to construe the clause as to give it
an imperative character /make it legally binding as would defeat testator’s intention
(Lau Tyng Tyng v Lau Boon Wee)
o What if beneficiary (child of testator) predeceases him, leaving issue?
 Named children  falls to their estate if they predecease
 S 26, WA: Gifts to children or other issue who leave issue living at testator’s
death not to lapse
 Re Loke Soh Lui
o When a testator intends to give to his child/other issue (“named
children”) and not to a class, the gift will fall into the estate of the
named children should any of them predecease him leaving issue
living at the time of the testator’s death
o If he intends gifts to the named children to lapse should they
predecease him, testator has to spell out that intention in his will
 (Note that s 26 doesn't apply to named individuals who are not the issue of
the testator)
 Class of persons
 Share of the member of the class predeceasing him will lapse and be
redistributed to the other members of that class surviving him
o i.e. estate of member of that class predeceasing testator will be
excluded from the gift
• WHEN DRAFTING WILL
o Make a contemporary written record of his or her attendances on the testator (Chee Mu Lin
Muriel)
 If will turns out to be the subject matter of a contested probate after death, drafts of
the solicitor who had prepared the will is required to produce all “testamentary scripts”
to the parties for an affidavit of testamentary scripts to be filed in the action.
 r 260(5) of the FJR: testamentary script –a will or draft of the will, written
instructions for a will made by or at the request or under the instructions of
the testator and any doc purporting to be evidence of the contents, or to be a
copy, of a will which is alleged to have been lost or destroyed
o Solicitor prohibited from acting for a client in preparing a will under which he would receive a
significant gift, whether as beneficiary or otherwise + must ask the client to seek independent
legal advice (r 25 of PCR)
 Re Wan Hui Hong James: struck off the rolls
o Solicitor who drafted his client’s will can be appointed as executor/ trustee so long as he is not a

5
 beneficiary/ legatee under the will

• CONSTRUCTION OF WILL
o Foo Jee Seng v Foo Jhee Tuang (CA): overriding aim of the court in construing a will is to seek and
give effect to the testamentary intention as expressed by the testator.
 This intention must predominantly be derived from the wording of the will itself,
although the circumstances prevailing at the time the will was executed may be taken
into account.
 Where a strict literal construction of the will
 Would give rise to an effect which is clearly out of sync with the general
intention of the testator as derived from the will as a whole,
 Such a reading should give way to a more purposive interpretation.
 Presumption that effect should be given to every word of the will
 Court should not discount any part of the will if there can be some meaning
that is not contrary to the express intention that could be ascribed to it.

• Properties that canNOT BE DISPOSED OF

o All monies in CPF accounts of testator
 CPF monies do not form part of the deceased CPF member’s estate –nominating a
beneficiary of the CPF monies in a will is invalid in the absence of a nomination under
the CPF rules (Chai Choon Yang v CPF Board).
 If there has not been CPF nomination, s 25(2) of the CPF Act states that the CPF monies
will be paid to the Public Trustee for disposal in accordance with the Intestate
Succession Act if the member is not a Muslim.
o Joint tenancy immovable properties
 Will pass to a surviving joint owner automatically on the death of the other joint
owners (Shafeeg bin Salim Talib v Fatimah bte Abud bin Talib)
o Joint bank account
 The credit would also be payable to the surviving account holder (Low Gim Siah v Low
Geok Khim)
 However, this is a rebuttable presumption (of advancement).
o Trust insurance policies taken out under s 73 of the CLPA
 Before 1 September 2009, covered by s 73 CLPA
 If the nominated beneficiaries are spouse and/ or children, an implied trust is
created under Section 73 CLPA and thus cannot be voided by a Will.
 Moneys payable under policy of assurance not to form part of the estate of
the insured (Lim Lina v Estate of Quick Cheng Gee, deceased)
o Insurance policies to children taken out under s 49L of Insurance Act (irrevocable nomination)
 S 49L(2): Where policy owner of a relevant policy who has attained age of 18 years —
 (a) Nominates as beneficiary/ies under the relevant policy his spouse, his
children, his spouse and children or any of them;
 (b) Expresses in nomination his intention to create a trust of the policy moneys
in favour of the nominee/s; and
 (c) Makes the nomination, and indicates each nominee’s portion of the policy
moneys, in such manner as may be prescribed by the Authority,
 The nomination shall create a trust of the policy moneys in favour of the
nominee/s.
 S 49L(4): All policy moneys subject to the trust created under subsection (2) shall not
form part of the estate of the policy owner or be subject to his debts.
  Proceeds of insurance policies devolve upon beneficiaries nominated in a policy
 Note revocable nomination under s 49M
 S 48M(7): A nomination made by the policy owner of a relevant policy under
subsection (2) shall be deemed to be revoked if —

6
 o (b) After the making of the nomination, the policy owner makes a will
in accordance with the Wills Act which —
 (i) Provides for the disposition of all death benefits under the
relevant policy; and
 (ii) Specifies such particulars of the relevant policy as may be
prescribed by the Authority; or
o (c) After the making of the nomination, the policy owner makes
another nomination under subsection (2) or a nomination under
section 49L(2).
 S 49M(8): Where policy owner of a relevant policy has made one/more
nominations under subsection (2) and one/more wills in accordance with the
Wills Act —
o (a) if the last nomination is not and is not deemed to be revoked,
the death benefits under the relevant policy shall be distributed in
accordance with the last nomination;
o (b) if the last nomination is or is deemed to be revoked, and the last
will is not revoked, the death benefits under the relevant policy shall
be distributed in accordance with the last will; or
o (c) if the last nomination is or is deemed to be revoked, and the last
will is revoked, the death benefits under the relevant policy shall be
distributed in accordance with the Intestate Succession Act

2. DETERMINING TESTAMENTARY CAPACITY

• For a will to be found valid, the testator must

o (a) Have the mental capacity to make a will;
 This element is not necessarily determined by the existence of some form of mental
impairment
 Though a testator’s mental power may be reduced by physical infirmity or the
decay of advancing age to below the ordinary standard, he might still retain
sufficient intelligence to understand and appreciate the testamentary act.
o (b) Have knowledge and approval of the contents of the will; and
o (c) Be free from undue influence or the effects of fraud.
• Banks v Goodfellows test, restated in George Abraham Vadakathu v Jacob George
o Testator understands the nature of the act and what its consequences are;
o He knows the extent of his property of which he is disposing;
o He knows who his beneficiaries are and can appreciate their claims to his property; and
o He is free from an abnormal state of mind (e.g., delusions) that might distort feelings or
judgments relevant to making the will
• Testamentary capacity principles (Lian Kok Hong v Lian Bee Leng, and Chee Mu Lin Muriel v Chee Ka Lin
Caroline
o Propounder of a will bears the legal burden of proving testamentary capacity
 Testamentary capacity will generally be presumed when the testator was not suffering
from any kind of mental disability and the will was duly executed in ordinary
circumstances.
o Even if the Testator’s mental disability is established, a finding still has to be made as to
whether testator lacked testamentary capacity as a result of the disability or whether he was
lucid when he made the will despite the existence of a mental illness.
o Rationality of the will is evidence of testamentary capacity and the evidential burden shifts when
the will is rational and duly executed.

7
 o Once testamentary capacity is established, a rebuttable presumption arises that the testator
knew and approved the contents of the will and the evidential burden shifts to the opponent of
the will to rebut this presumption.
o But suspicious circumstances: This presumption, however, will not operate where there were
circumstances surrounding the execution of the will which would raise a well-grounded
suspicion that the will did not express the mind of the testator (Chee)
 Circumstances are relevant only if they attend or relate to the preparation and
execution of the will (Lian Kok Hong)
 E.g. where a will was prepared by a person who takes a substantial benefit under it, or
who has procured its execution, such as by suggesting the terms to the testator or
instructing a solicitor to draft the will which is then executed by the testator alone
 Whether the circumstances are suspicious enough so as to shift the burden of adducing
affirmative evidence of the testator’s knowledge and approval of the contents of the
will to the propounder is largely dependent on the factual matrix of the case itself.
o In such suspicious circumstances where no presumption arises, the propounder of the will must
produce affirmative evidence of the testator’s knowledge and approval (Chee)
 The court will typically look for evidence that the testamentary instrument was read
over by, or to, the testator, or evidence that the testator gave instructions for the
drafting of the will and that the will was drafted in accordance with those instructions
 Further, where the testator is mentally impaired, the suspicious circumstances are
reinforced, and the propounder must also show that the testator was competent to
make the will. Accordingly, the irrationality or unusual contents of the will may go
towards raising suspicious circumstances
o Where undue influence is alleged, it cannot be presumed and must be proved.
•

3. INTESTATE SUCCESSION

• Applies to non-Muslims (s 2) who

o Dies domiciled in SG with pty in SG (s 5(a)) or
o Dies domiciled outside SG but possessed of immovable pty in SG (s 5(b)) 2
• Who are “children”?
o Means legitimate child (s 3)
o Includes adopted child (s 3)
 Adopted by virtue of an order of court under any written law for the time being in force
in SG, Malaysia or Brunei Darussalam
o (X) Step-children
 Low Guang Hong David v Suryono Wino Goei [2012] SGHC 93
 Competing claims between the step children and the deceased’s single brother
 S3 ISA: “child” means a legitimate child and includes any child adopted by
virtue of an order of court under any written law for the time being in force in
Singapore, Malaysia or Brunei Darussalam
 HC per Tay Yong Kwang J: “child” under s 3 of ISA should not be interpreted
as including a step-child
o Main meaning of “child” was “legitimate child” and the enlarged
definition was “adopted child”

2
4. Law regulating distribution.
(1) The distribution of the movable property of a person deceased shall be regulated by the law of the country in which he was
domiciled at the time of his death.
(2) The distribution of the immovable property of a person deceased shall be regulated by this Act wherever he may have been
domiciled at the time of his death.

8
 o ISA requires a legal and biological connection btw parent and child
and hence, exception for lawfully adopted children who satisfy the
legal but not the biological requirement.
o Thus, notwithstanding that it was the step-children’s own natural
father who had given his estate to the deceased (mother), the
deceased’s single brother in indonesia was entitled to the entire
estate.
 Court observed that it is incumbent on step-parents wishing to provide for
their step-children’s entitlement to their estate to expressly state so in a
proper will.
o (X) Foster son cannot claim (Lim Weipin v Lim Boh Chuan)
• “Half blood” and “whole blood” and priority of distribution
o s 6(a): Persons held to be similarly related to deceased.
 For the purpose of distribution, no distinction btw related to a person deceased
through his father and those who are related to him through his mother
 No distinction btw those who were actually born in his lifetime and those who at the
date of his death were only conceived in the womb but who have subsequently been
born alive; and
o s 6(b): Those related to a person deceased by the half blood shall rank immediately after those
of the whole blood related to him in the same degree.
 “whole blood” – the relationship existing between persons having the same two
parents; unmixed ancestry
 “half blood” – the relationship existing between persons having the same father or
mother, but not both parents in common
o Re Fenton [1993] 3 SLR(R) 812 deals with s 7 rule 6 (half-siblings)
 Whole-blood sibling’s children v Half- blood siblings –based on S.6(b), whole blood
sibling triumphs
o Chng Heng Tee (alias Cheng Kim Tee) v Estate & Trust Agencies deals with s 7 rule 8 (half uncles
or half aunts)
 Facts
 Deceased died intestate
 No surviving spouse, descendants, parents, brothers and sisters or their
children or grandparents.
 But there were competing aunts: whole blood aunt from the intestate’s
mother’s blood relations v half blood aunts from the intestate’s father’s blood
relations.
 Held
 Based on 6(a) (no distinction btw those related to pa person deceased through
his father and those who are related to him through his mother), it was a draw
between the parties.
 But S 6(b) –whole blood aunt won
 s 7 r 8 had to be interpreted in the light of, and subject to, s6(b).
o Aunt of deceased who shared the same parents as the deceased’s
mother was the sole beneficiary of the deceased’s estate to the
exclusion of the Pfs as she was a whole blood aunt of the deceased,
unlike the Pfs who were the half blood aunts and half blood uncle of
the deceased.
• Rule 9 –bona vacantia
o In default of distribution under the foregoing rules the Government shall be entitled to the
whole of the estate.
o S. 27 – Civil Law Act

9
  (1) and (2) Were a right to the estate of any person who dies intestate without next-of-
kin has accrued to the Government, such estate, property or part thereof that is not
land, shall form part of the Consolidated Fund.
 (3) If it appears to the Minister (of Law) that a right to any estate or property upon the
death of a person as mentioned in subsection (1) has accrued to the Government, it
shall be lawful for the Minister, upon application being made to him or if he considers it
reasonable to do so, disclaim and release in whole or in part that right to such estate or
property in favour of such person or persons who establish to the satisfaction of the
Minister any equitable or moral claim thereto; and to authorise or order the giving,
conveyance, transfer, grant or payment, out of the whole or any part of such estate or
property or (if sold) its proceeds, in such share, proportion and manner and upon such
terms and conditions as the Minister thinks appropriate (whether or not including the
payment of moneys) to that person or those persons, as the case may be.
• s 10: Partial intestacy
o Where any person dies leaving a will beneficially disposing of part of his property, this Act shall
have effect as respects the part of his property not so disposed of, subject to the provisions
contained in the will
 Provided that the personal representative shall, subject to his rights and powers for the
purposes of administration, be a trustee for the persons entitled under this Act in
respect of the part of the estate not expressly disposed of unless it appears by the will
that the personal representative is entitled to take that part beneficially.
• Distribution under intestacy succession rules: Section 7
o Rule 1: If an intestate dies leaving a surviving spouse, no issue and no parent, the spouse shall be
entitled to the whole of the estate.
o Rule 2: If an intestate dies leaving a surviving spouse and issue, the spouse shall be entitled to
one-half of the estate.
o Rule 3: Subject to the rights of the surviving spouse, if any, the estate … of an intestate who
leaves issue shall be distributed by equal portions per stirpes to and amongst the children of the
person dying intestate and such persons as legally represent those children, in case any of those
children be then dead.
 r 3(1) —Persons who legally represent the children of an intestate are their
descendants and not their next-of-kin.
 r 3 (2) — Descendants of the intestate to the remotest degree stand in the place of
their parent or other ancestor, and take according to their stocks the share which he or
she would have taken
 Extends to the grandchildren or great grandchildren of an intestate etc.
 But, it is the entitlement of the parent closest in linkage to the intestate which
will determinate the share (if any) a remoter issue will be able to inherit.
o Rule 4: If an intestate dies leaving a surviving spouse and no issue but a parent or parents, the
spouse shall be entitled to one-half of the estate and the parent or parents to the other half of
the estate.
o Rule 5: If there are no descendants the parent or parents of the intestate shall take the estate, in
equal portions if there be two parents.
o Rule 6: If there are no surviving spouse, descendants or parents, the brothers and sisters and
children of deceased brothers or sisters of the intestate shall share the estate in equal portions
between the brothers and sisters and the children of any deceased brother or sister shall take
according to their stocks the share which he or she would have taken.
o Rule 7: If there are no surviving spouse, descendants, parents, brothers and sisters or children of
such brothers and sisters but grandparents of the intestate the grandparents shall take the
whole of the estate in equal portions.
o Rule 8: If there are no surviving spouse, descendants, parents, brothers and sisters or their
children or grandparents but uncles and aunts of the intestate the uncles and aunts shall take
the whole of the estate in equal portions.

10
11
4. PROBATE PROCEEDINGS

• Probate jurisdiction
o Family Division of the High Court:
 Probate jurisdiction for estates which exceed $5 million in gross value and
 Jurisdiction to re-seal in Singapore grants of representation from Commonwealth
courts and Hong Kong courts, and
o Family Courts
 Probate jurisdiction for estates with a gross value of less than S$5 million
• Will made outside SG
o (Note if not in English, then r 953 of FJR must be complied with)
o For application for a grant of probate, court may require that an Affidavit of Foreign Law be
filed.
 r 218, FJR
 Where of the law of a country outside Singapore is required on an application
for a grant, affidavit of any person who practises as a lawyer there and is
conversant with its law is to be filed
 Para 65, PD
 (2) For application for grant of probate: Person making affidavit of foreign law
should state –
o (a) Who is entrusted with the administration of the estate by the
court having jurisdiction at the place where the deceased died
domiciled or who is entitled to administer the estate by the law of the
place where the deceased died domiciled; and
o (b) Whether the will was properly executed in accordance with s 5 of
the Wills Act
 (3) For application for a grant of letters of administration, person making
affidavit of foreign law should state –
o (a) Who is entrusted with the administration of the estate by the
court having jurisdiction at the place where the deceased died
domiciled or who is entitled to administer the estate by the law of the
place where the deceased died domiciled;
o (b) Who are the beneficiaries of the estate in accordance with the law
of the place where the deceased died domiciled; and
o (c) Shares of the minor beneficiaries (if any) in accordance with the
law of the place where the deceased died domiciled.
 (4) For application for a grant of letters of admin with will annexed, person
making the affidavit of foreign law should state
o Information required in sub- paragraphs (2) and (3).
• Types of grant
O GRANT OF PROBATE
 To carry out a valid act set out in the will, executor will have to get the Grant of
Probate.
 A will does not give the executor and trustee the power to dispose of a
deceased’s assets. The will gives the title to the deceased’s assets to the
executor, but the executor needs letters of representation in order to:
o Dispose of or distribute the deceased’s assets
o Transfer the shares that he owned
o Open up the safe deposit box that he had in the bank,
o Register the name of the beneficiaries with the Registrar of shares in
companies where the deceased held shares
 If executor dies after proving the will but before extraction

12
  Executor’s executor may step into his shoes and extract probate in the estate
the probate of which the deceased executor had not yet extracted (s 25 of the
Civil Law Act)
 Citation proceedings: If an executor who is entitled to apply for probate does not do so
 Where executors have died / no executors coming forth to prove the will / all
the executors may have died /testator appointed eldest child to be the
executor and this child may still be an infant when the testator dies
 Beneficiaries under the will can take up Citation proceedings (read FJR Rules
243, 244, 245, 246, 256, 258) against the executor requiring him to take out
Probate, failing which they can claim the right to do so themselves. If that
happens, then you have to apply for LA with the will annexed.
 Note: no need for administration bond and sureties even if infant beneficiaries under
the will (big advantage)
O GRANT OF LETTERS OF ADMINISTRATION:
 Who can take out LA? (s 18, PAA)
 In granting LA, the court shall have regard to the rights of all persons
interested in the estate of the deceased person (s 18(2), PAA)
o S 18(4)(a) LA may be granted to the husband or widow or next of kin
or any of them
o S 18(4)(b): When such persons apply for letters of administration, it
shall be in the discretion of the court to grant them to any one or
more of such persons;
 Priority: determined by entitlement to the deceased’s estate under the laws of
intestate succession (Toh Seok Kheng v Huang Huiqun )
 If persons ranking in priority (better entitlement e.g. parent against siblings) to
client, renunciations to grant of LA must be obtained from those persons
o s 3 (express renunciation), s 4 (constructive renunciation through
citation proceedings) and s 5 (effect of renunciation) of PAA, FJR r 233
 Forms of Renunciations are found at Form 53 of the PD,
Appendix A.
o Registrar may also require persons having equal priority to also
renounce and consent
o If deceased had a family of 7 children, who are all adults, normally the
practice to have the eldest apply for LA
 Consider including a Consent by the party renouncing GLA to consenting to
dispensation of sureties to the administration bond
o So that if there is a need to furnish sureties, and the facts justify an
application for dispensation of sureties, persons who have renounced
GLA will not need to sign at a later time a separate Consent to
dispensation of sureties.
 Consider administration bond and sureties
 If minority or life interest in the estate –at least two administrators or administration
would have to be granted to a trust corporation (s 6(1), PAA)
 If more than one administrator, all administrators must act jointly
 Tacplas Property Services Ltd v Lee Peter Michael
o CA: administrators must act jointly + act of one administrator could
not bind the estate, unless act was ratified by all administrators
 Joint administrator
o One who would have been entitled to apply for grant of LA under the
PAA and the application is made in the names of the 2 administrators
 Co-administrator
 Appointed under an application filed by a single applicant –applicant seeks
court’s leave for co-administrator (normally one who would otherwise have no

13
 right to apply for grant of LA for deceased) to be appointed to administer the
estate with the applicant.
o Where estate requires 2 administrators to be appointed, but only 1
person eligible to apply for a grant of LA (e.g., widow with infant
children), applicant will have to apply to court for a co-administrator
to be appointed as 2nd administrator.
o Prior written consent of the co-administrator has to be obtained and
this has to be filed in court.
 Creditors may join any of the beneficiaries (usually choose beneficiary who is first
entitled to apply for LA) as defendants –you will force them by Citation to take out LA.
 If they do not, then the creditor himself may apply for Letters of
Administration for the limited purpose of recovering the debt
O GRANT OF LETTERS OF ADMINISTRATION WITH WILL ANNEXED
 Personal rep is administrator (if he has taken out letters of admin)
 Hybrid of application for grant of probate and grant of letters of administration
 Where there’s a will but no executor (die/ renounced applying for probate)
 S 13, PAA: LA with the will annexed may be granted to such person/s as the court thinks
the fittest to administer the estate
• Caveat: s 33, PAA and r 239, FJR
o S 33(1): If you claim to have an interest, you may at any time after the death of a person and
before probate /LA have been granted to his estate, enter a general caveat, so that no probate/
LA shall be granted without notice to the caveator
o S 33(2): After entry of any such caveat no such grant shall be made until the caveator has been
given opportunity to contest the right of any probate applicant to a grant.
o Caveat lasts 6 months (r 239, FJR)
• Authority and acts of executors VS, administrators prior to grant of representation
o Teo Gim Tiong v Krishnasamy Pushpavathi (legal representative of the estate of Maran s/o
Kannakasabai, deceased)
 Executorship takes effect from the moment of death,
 No need for probate of will before executor could apply to be substituted in
place of the deceased in the action
 But need grant of probate to do an act in accordance with the will
 Contra. LA: unless grant of LA has been issued, intestate deceased person’s family has
no legal authority to act for the estate. Only when grant is extracted that the person to
whom the grant is made is clothed with the authority to deal with the estate
 The Grant of Letters of Administration itself is the title
 37(1) of PAA: where a person dies intestate, his real and personal estate vests
in the Public Trustee
o Included in real and personal estate is any cause of action accrued
while he was alive and which survived his death.
o Thus, upon X’s death, only the Public Trustee could act for X’s estate
in any matter until there was a grant of administration
 On grant of administration, pty of the estate vests in the administrator/s (s
37(4))
o However such vesting of pty in the administrator(s) did not confer on
the latter the authority to deal with those assets until the
administrator(s) extract the order of the grant.
 Only when grant is extracted that the person to whom the grant is made is
clothed with the authority to deal with the estate
 Doctrine of relation back
 Permitted the title of the administrator to relate back to the time of the death
of the deceased  to give validity to certain acts done by an administrator
before LA extracted provided that they were done for the benefit of the

14
 estate.
• ADMINISTRATION BOND – only for grantee of LA (whether with or w/o will annexed)
o For a FC application, NO SECURITY is required unless: para 68, PD –
 (a) Estate and effects in respect of which the grant is applied for, exclusive of what the
deceased was possessed of or entitled to as a trustee and not beneficially, but without
deducting anything on account of the debts due or owing from the deceased, exceed
the value of $5 million;
 (b) Minority interest in the estate;
 (c) Life interest in the estate;
 (d) Beneficiaries who lack capacity within the meaning of MCA
 (e) Grantee is a creditor; or
 (f) Registrar thinks fit.
o For a FDHC application/FC application where SECURITY IS REQUIRED
 If dispensation of sureties is not applied for and/or is not granted, applicant will need to
provide security for the due administration of the estate by way of an admin bond and
2 sureties to the admin bond
 Whereby the sureties sign a bond undertaking to ensure that administrators
will truly and honestly administer the estate and render proper accounts.
 s 29(1), PAA: Where security is required the registrar shall determine its
sufficiency.
o s 29(2): While security shall ordinarily be by bond in the prescribed
form by the grantee and two sureties in the amount at which the
estate within the jurisdiction is sworn without deduction of any debts
due by the deceased, other than debts secured by mortgage;
o s 29(3): Court may increase or decrease the no of the sureties, or
dispense with them, or reduce the amount of the bond (for any
sufficient reason)
 An application for DISPENSATION OF SURETIES must comply with para 69, FJCPD with
a supporting affidavit deposing:
 (a) Date of the death of the deceased;
 (b) Efforts made to find sureties and/or why sureties cannot be found;
 (c) Where death occurred before 15 February 2008, that estate duty has been
paid, is not payable, has been postponed or has otherwise been cleared;
 (d) Who the beneficiaries are, their shares to the estate, ages, and whether
the adult beneficiaries consent to the dispensation;
 (e) Whether there are beneficiaries who are minors or beneficiaries who lack
capacity within the meaning of the MCA, the names of such beneficiaries,
o Relationship of the administrators and co-administrators (if any) to
such beneficiaries and
o Steps that will be taken to protect interests of such beneficiaries;
 Will have to satisfy the court that dispensation of sureties
will not/ unlikely to prejudice anyone, especially the minor
beneficiaries / beneficiary who lacks capacity
 Protect minor beneficiary? E.g. set up trust account which
will be opened by administrator for the beneficiary until they
turn 21 and use funds only for their maintenance and
education (ss 33 and 34 of Trustees Act)
 (f) Whether the estate has any creditors for debts not secured by mortgage,
the amount of the debt owed to them, and whether these creditors consent
to the dispensation; and
 (g) Any other information which may be relevant to the application.
 (4) The consents in writing of all adult beneficiaries to the dispensation of
sureties, duly signed in the presence of a solicitor or any person before whom

15
 an affidavit can be sworn or affirmed, shall be filed with the application for
dispensation of sureties.
 Note that even if dispensation is granted to waive the requirement for
sureties, the applicant will still have to file an Administration Bond before
being allowed to extract the grant of LA.
o If application for administration with will annexed –court will ordinarily require the applicant to
furnish an admin bond unless all creditors and beneficiaries consent to the dispensation of the
admin bond
• Process of application for grant (see RM 03, 5c Filing Probate Applications)
o General process (see above for details)
 Application made by ex parte OS (r 208(1), FJR)
 Must be filed with a Statement in Form 51 (Appendix A to PD)
o r 208(4): clearance of prior right, whether any minority or life interest
arises under the will or intestacy (for an application for grant of
administration)
o r 208(5): Domicile
o r 208(7): where any person is named as a relative of the deceased, he
must, if a lawful relative, be so described; and where the legality of
any such relationship is alleged by virtue of any law or custom, such
law or custom
o r 208(8): Where an application for a grant is, for the first time, made
after the lapse of 6 months from the deceased’s death, the reason for
the delay in making the application.
 Endorse certificate in Form 52 stating whether any caveats or pending probate
applications in respect of the estate (r 208(3), FJR)
o Annex search reports to the OS (PD 62(2))
 CTC of death certificate
 CTC of the will
 In the case of a resealing of a grant, a sealed CTC of the foreign grant (PD 62(4)
(c))
 (If LA): renunciations by persons having priority who don't wish to take up
grant of LA
 Within 14 days after filing OS, file supporting affidavit (r 208(2), FJR)
 Affidavit verifying the info in the Statement in Form 51 and must be exhibited
to the affidavit
o Must be in Form 225, Appendix A of PD
o And exhibit the following docs (para 63(2), PD)
 Statement in Form 51
 Schedule of assets
 Other supporting docs referred to in para 62(4) and (5), PD
 Usually expedient to file the admin oath required under s 28, PAA at the same
time as supporting affidavit

5. INHERITANCE FAMILY PROVISION ACT (IFPA)

• Introduction
o Singapore’s Inheritance (Family Provision) Act was passed in 1966 and is based on the English
Inheritance (Family Provision) Act 1938, as amended up to 1966.

16
 o Singapore’s IFPA has not been amended in any substantive way since it was passed in 1966. In
comparison however the UK Act has been massively revamped since 1966 and in fact underwent
a sea-change in 1975 when it was renamed the Inheritance (Provision for Family and
Dependents) Act 1975. The current situation is therefore that UK legislation on inheritance
family provision is entirely different from Singapore’s, and great care should be taken when
reading English books and authorities regarding the English equivalents of the Inheritance
(Provision for Family and Dependents) Act as they do not apply in Singapore.
• IFPA applies to:
o Non-Muslims who die domiciled in Singapore
 s 1(2) states that the Act does not apply to the estates of deceased Muslims
 s 3(1) states that the Act only applies where a person dies domiciled in Singapore
• If client is married and dies domiciled in SG – if fails to make reasonable provision for maintenance of
his dependant/s
• Only dependents can claim: s 3(1)
o Wife or husband;
o Daughter who has not been married or who is, by reason of some mental or physical disability,
incapable of maintaining herself;
o Infant son
o Son who is, by reason of some mental or physical disability, incapable of maintaining himself
o Elaboration on son and daughter (s 2): "Son" and “daughter”, include a male or female child
 Adopted by the deceased by virtue of an order made under the provisions of any
written law relating to the adoption of children for the time being in force in SG,
Malaysia or Brunei Darussalam, and also
 Son or daughter of the deceased en ventre sa mere at date of death of deceased.
 The term “en ventre sa mere” literally means in the mother’s womb so if the
child was conceived and in the womb of the mother when the father dies, such
child would be entitled to reclaim in the estate of the deceased father.
o (X) Illegitimate children are not dependents (AAG v Estate of AAH)
• Court may order that such reasonable provision as the court thinks fit shall be made out of the
deceased’s net estate for the maintenance of that dependent (s 3(1))
o On application by/ on behalf of dependent
 If dependent thinks the disposition effected by will/ intestacy law/ combination of both
 doesn't make reasonable provision for his maintenance
o Provided that no application shall be made to the court by /on behalf of any person in any case
where the disposition of a deceased’s estate effected as aforesaid is such that the surviving
spouse is entitled to not less than 2/3 of the income of the net estate and where the only other
dependent or dependents, if any, is or are a child/children of the surviving spouse.
• S 3(2): Provision for maintenance to be made by an order shall, subject to s 3(4), be by way of periodical
payments and the order shall provide for their termination not later than
a) In the case of a wife or husband, her or his remarriage
b) In the case of a daughter who has not been married, or who is under disability, her marriage or the
cesser of her disability, whichever is the later;
c) In the case of an infant son, his attaining the age of 21 years;
d) In the case of a son under disability, the cesser of his disability,
Or in any case, his or her earlier death.
o Subsection (4) which is referred to earlier stated that if the deceased net estate does not exceed
$50,000, the Court shall have power to make an order providing for maintenance in whole or in
part by way of a lump sum payment.
• Please read Sections 3(5), 3(6), 3(7), 3(8) carefully as these set out the matters which the Court must have
regard to and consider in relation to any IFPA application
o s 3(7): Court shall have regard to the deceased’s reasons for making the dispositions made by
his will/ refraining from disposing by will of his estate or part of his estate/ not making any
provision/any further provision for a dependent,

17
  And the court may accept such evidence of those reasons as it considers sufficient
including any statement in writing signed by the deceased and dated
 In estimating the weight to be attached to any such statement the court shall have
regard to all the circumstances from which any inference can reasonably be drawn as
to the accuracy or otherwise of the statement.”
o Thus in preparing a will for a client who intends to make no provision for his dependent(s) or a
provision which is less than what the dependent would have expected, the reasons for the
testator doing so should be stated in the will itself, to pre-empt an IFPA application from a
disgruntled dependent.
• Time within which application must be made.
o s 4(1) Except as provided by this section or s 6, an order under this Act shall not be made save on
an application made within 6 months from the date on which representation in regard to the
deceased’s estate is first taken out.
o (2) If it is shown to the satisfaction of the court that the limitation to the said period of 6 months
would operate unfairly
 (a) In consequence of the discovery of a will or codicil involving a substantial change in
the disposition of the deceased’s estate (whether or not involving a further grant of
representation);
 (b) In consequence of a question whether a person had an interest in the estate; or as
to the nature of an interest in the estate, not having been determined at the time when
representation was first taken out; or
 (c) In consequence of some other circumstances affecting the administration or
distribution of the estate,
 The court may extend that period.
• Effect and form of order
o s 5(1) Where an order is made under IFPA, then for all purposes (the will/ intestate law/ both), it
shall have effect, and shall be deemed to have had effect as from the deceased’s death, subject
to such variations as may be specified in the order for the purpose of giving effect to the
provision for maintenance thereby made.
o S 5(2) The court may give such consequential directions as it thinks fit for the purpose of giving
effect to an order made under this Act, but no larger part of the net estate shall be set aside or
appropriated to answer by the income thereof the provision for maintenance thereby made
than such a part as, at the date of the order, is sufficient to produce by the income thereof the
amount of the said provision.
o  A person’s testamentary freedom is limited by the operation of this Act.

• The Court of Appeal in the past five years has handed down 2 major landmark decisions in connection
with the IFPA.
o AAG v Estate of AAH deceased (2010)
 the applicant had sought on behalf of her 2 legitimate daughters for maintenance out
of the estate of the deceased (which was the respondent in the appeal) under the IFPA.
 The sole issue in this appeal was whether an illegitimate child could claim for support
and maintenance under the IFPA.
 The decisions of both the High Court as well as the Court of Appeal was that the IFPA
does not allow illegitimate children to claim maintenance under the Act.
 Although the Court of Appeal has ruled against the illegitimate child from claiming
maintenance under the IFPA, the Court of Appeal also took the further unusual step of
calling and urging the legislature to seriously consider making the necessary reforms to
the IFPA to enable an illegitimate child to claim for maintenance under the Act.
 The Court of Appeal said that it would be unfair to punish innocent children by denying
the maintenance which a legitimate child would have received upon his father's death
especially where like in this case the father had been supporting the child until his
death.
 Para 5 of Justice Choo Han Teck’s decision - “It is up to the Legislature to revise the law
in this regard if it thinks necessary. Legitimacy is an inconsequential factor in many

18
 aspects of the law today. This might be the next (see, eg, s 68 of the Women’s Charter
and s 20 of the Civil Law Act …). As the learned member for Chelmsford, …, stated in the
British Parliament during the debates at the Second Reading of the Bill to enact the
Family Law Reform Act 1969, “very few people today continue in the belief that the sins
of the fathers should be visited on the children” (United Kingdom, House of Commons,
Parliamentary Debates (17 February 1969), vol 778 at col 45). The Attorney-General …
at the same Parliamentary session, likewise stated that it “would seem almost a piece
of cruelty to punish a child for the circumstances in which the child was born” (at col
46).”
 Paragraph 41 of Court of Appeal’s decision in AAG – “ “By reaching the conclusion
which we have, we are by no means expressing a view that it would be inappropriate to
extend the scope of the IFP (S) Act so as to enable an illegitimate child of a deceased
person from invoking it. That is a policy call for the Legislature. But, as we have alluded
to before, s 68 has already imposed a duty on a natural parent to maintain an
illegitimate child. So the question is whether the law should go one step further to
provide that the duty of a natural parent to maintain an illegitimate child should not
terminate with his or her death and that his estate should, where its resources permit,
continue to be liable to discharge that duty. Logically, we are unable to see why the law
should not be changed to take that further step. While we recognise that this issue
does involve considerations of social policy, we would imagine that the balance should
favour imposing a duty on the estate of the deceased natural parent. We would urge
the Legislature to seriously consider making the necessary reforms in this regard so as
to enable an illegitimate child to claim for maintenance under the IFP (S) Act.
• Interplay btw just and equitable division under the WC and the reasonable provision of maintenance
under the IFPA and the considerations of the court in such cases
o AOS v Estate of AOT (2012)
 Wife commenced divorce proceedings and a decree nisi had been granted but before
ancillary matters could be determined the testator died. Thus testator’s will took effect
and widow sought reasonable provision for maintenance under the IFPA.
 Under his will, the testator had given his entire estate to his eight-year-old grandson
and nothing to his wife (the applicant) /his other children.
 Whether court should take into account the impending division of matrimonial assets
which, at the time of the testator's death was pending, as a relevant factor in
determining or quantifying the reasonable provision of maintenance under IFPA.
 The broader legal question was whether it was just and appropriate that a
surviving spouse in the circumstances of this case should be entitled to a
smaller part of the testator's estate under the IFPA than she would otherwise
have received as a divorcee in ancillary proceedings under the WC.
 In all the circumstances of the case, court ruled that there was no need for any further
provision to be made under the IFPA as she had already been reasonably provided for
by the deceased.
 CA reiterated that the IFPA is concerned with maintenance and not the creation of
legacies.
 The appellant’s prayers were far in excess of what constituted reasonable
maintenance under the IFPA.
 In claiming for half of the testator's estate the appellant was seeking to
incorporate the provisions of the WC concerning just and equitable division of
matrimonial assets between divorcing parties into the IFPA – Court had no
power to do so.

6. TESTACY VS INTESTACY

Reason Dying with a valid will Dying intestate

1. Right to Testator has a free hand (subject Succession to estate is determined by
19
 choose one’s only to leaving reasonable provisions the provisions of Intestate Succession
beneficiaries for dependants). Act;
and
determine [Inheritance (Family Provision) Act] Estate may be inherited by persons who
their legacies are not deserving or who will get a
larger share than those who deserve or
need more, or even by the State (bona
vacantia).
2. Ability to The testator can choose the Only the next of kin who qualifies under
choose the Executor(s) and Trustee(s) of the will s 18(3), Probate and Administration Act
Executor and and set the scope of their powers. can be administrators. There could be
Trustee of disputes among the next of kin as to
one’s will and The Executor need not be a next-of- who should be appointed the
set the terms kin, or even be a beneficiary (can be administrator.
of a professional or trust company).
appointment A bankrupt is unlikely to be given leave
Even a bankrupt may also be named to be appointed administrator.
executor (if leave of court obtained),
as it was the testator’s choice.
3. Minimum Only one executor needed At least two administrators to be
number of appointed.
executors or
personal This can lead to additional
representativ inconvenience as the administrators
es to have to act jointly and difficulty in
administer an finding the additional administrator
estate with a willing to be appointed.
beneficiary
who is a Further, where there is a beneficiary
minor minor, sureties are needed.
4. Vesting of The estate will vest in the executors The estate does not vest in the
deceased’s upon death, enabling the executor to administrators, until after letters of
estate handle the deceased’s affairs subject administration have been obtained.
to production of probate if and when
required The estate will vest in the public trustee
of Singapore for purely statutory and
formal purposes, and the estate will be
in limbo until a Grant of LA is obtained
Teo Gim Tiong v Krisnasamy Pushpavathi [2014] 4 SLR 15
6. Power to The executors have the power from The intending administrators have no
carry on the the time the deceased dies, to carry such powers until they obtain the grant
deceased’s out his affairs and call in assets of LA.
affairs and (subject to the validations of their
calling in of actions by extraction of probate of Administrators cannot give good
deceased’s the will, and any restrictions discharge for any payments that they
assets contained in the will). collect until and unless they obtain the
grant of LA.
7. Appointment A Testator who has infant children Where a person has died intestate,
of guardians can appoint testamentary guardians leaving children and the other parent of
for infant for the children. The Testator has the children surviving him, the surviving
children free choice to appoint a parent is the sole guardian, regardless
testamentary guardian, and that of how the deceased parent may have
guardian appointed under the will of thought of the ability and suitability of

20
 the deceased parent shall act jointly the surviving parent to be the sole
with the surviving parent of the guardian.
infant so long as the other parent
remains alive, unless that parent If both parents have died without a will,
objects to his so acting (s 7(3), there may be disputes between the
Guardianship of Infants Act). next-of-kin of both parents to be
appointed guardians (and thereby
If the surviving parent objects, the control the finances of the estates of
testamentary guardian can apply to the deceased parents.
court for orders to be made under s
7(4).
Refer to ss. 6 and 7 of the Guardianship of Infants Act (Cap 122)
9. Administratio There is no administrative bond All Family Division of the High Court LA
n bond / required and no sureties required for applications require the Administrator
sureties to the the grant of probate. to execute an Administration Bond and
administratio to provide 2 sureties (unless otherwise
n bond ordered by the Court).

For the Family Courts, if the

circumstances of the Estate falls within
certain classes as set out in the Family
Courts (para 68 of the FJCPD), Admin
Bond and 2 sureties also needed, to
guarantee the Administrators’ proper
performance of the administration. The
amount to be secured is the gross value
of the estate.

Sureties cannot use protected property

under s 51, HDB Act for the purpose of
justification.

It can cost hardship and embarrassment

to the administrator to have to ask
around for people to volunteer to be
sureties.

If the administrators wish to apply for

10. Time and cost The grant of probate can be obtained
savings faster and at lower expense for legal
costs and court filing fees if there is a
valid will.
dispensation of sureties, they have to
satisfy the conditions and requirements
of para 69, FJCPD. An application for
dispensation of sureties will add quite
substantial costs and delay, which can
be averted if the deceased had made a
will.
Even in the most straightforward of
cases (and even if sureties and
administration bonds are not required),
it is slower and more costly to apply for
a grant of LA as opposed to grant of
probate. More documents have to be
filed for a LA application than for a
probate application.

21
11. Need to prove Generally speaking, no such
deceased’s requirement
religion,
customs,
personal laws,
etc.
12. Chain of An executor of an executor steps into
executorship the latter’s shoes and continues the
administration of the estate which is
not complete.
13. Preservation The testator can control when the
of family beneficiaries should receive the
wealth legacies, and to prevent the family
wealth from being squandered by
heirs
14. Saving of No stamp duty payable for the
stamp duty transfer of real property by will,
which can result in substantial
savings in stamp duties. Eg “I give my
house at 38 Oxley Road, Singapore
238629 to my son, _______
absolutely” will attract no stamp duty
whatsover
15. Saving of Where there is a valid will, there is
court fees no need to enter into an
administration bond or to apply for
dispensation of sureties. There are
also fewer documents that need to
be filed. There are filing fee savings
on the Bond, application for
dispensation and affidavit in support
or other documents which may be
required to be file.
16. Issuing good Sufficient where the executors
receipt and named in the will or any one of them
discharge in gives any discharge or receipt. This
satisfaction of can be done even before extracting
the deceased probate.
assets
17. Remuneration The testator can set and fix the
of personal remuneration of the executor.
representativ
e In the absence of an express
stipulation in the will, s 66, PAA
applies.
WITH ALL THE ADVANTAGES, WHY THEN DO SOME PEOPLE CHOOSE NOT TO MAKE A WILL?
These have to be proved and causes
delay in extracting grant of letters of
administration, and this is exacerbated
for deceased who have a foreign
domicile, as the court will require an
Affidavit of Foreign Law by a foreign
lawyer.
No equivalent chain of intestate estate
administration. Beneficiaries must make
a fresh application (grant de bonis non)
to the court.
Beneficiaries are entitled absolutely to
receive their full entitlement under the
ISA once all the estate has been
collected in and debts paid. The
administrator has no power to delay the
distribution (and the administrator
would be in breach of fiduciary duty if
he does so).
The transfer may result in beneficiaries
having to execute a subsequent deed of
arrangement to re-distribute the estate
according to the deceased’s wishes,
which will result in stamp duties
payable. This will result in ad valorem
stamp duty if transfer of immovable
property is involved
More documents must be filed for a
grant of LA (and also LA with will
annexed), thus resulting in higher costs.
Under e-Litigation, a filing fee is payable
for the filing of every document.
No valid receipt or discharge may be
given by an administrator unless he has
extracted grant of LA. Third parties are
therefore unwilling to deal with
administrators unless they are able to
produce the grant.
The personal representative can apply
to the court for commission under s 66,
PAA.
Rate of commission may be as high as
5% of the value of the assets collected.
22
  Some clients do not want to make wills because they cannot make up their minds how their estates
should be distributed and they are happy for the ISA to apply to their estate. In light of the advantages of
testacy mentioned above, such clients should still be strongly encouraged to make a will so that there is
an executor who will carry out their wish that the distribution of the estate is to follow the ISA. In this
way, they can enjoy the best of both worlds!

7. MENTAL CAPACITY ACT

REPRESENTATION
• 2 ways of representation under MCA
o (1) Where the person still has mental capacity, he can make a Lasting Power of Attorney (“LPA”)
under s 11 of the MCA and it will be effective only if he is certified as having mental capacity
later by a doctor.
 Donor (P) appoints Donee (D) as authorised person to make decisions concerning:
 P’s personal welfare or specified matters concerning his welfare; and/or
 P’s property and affairs
o (2) Where a person has no mental capacity to make a LPA, then there has to be a Court
Application to appoint a Deputy – Section 19 and Section 20 of the MCA.

LASTING POWER OF ATTORNEY

• Creation of LPA (s 11(2)): LPA is not created unless
O (a) Section 12 is complied with –
 s 12(1)(a): Donee must be 21 years and above
 s 12(1)(b): If power relates only to P’s pty and affairs, donee must be
 Either such an individual/ a person other than an indiv who is within a class of persons
prescribed as being eligible to be appointed as donees.
 Rule 5 MCR: Trust companies can be appointed as donee only for management
of assets
 s 12(2) Undischarged bankrupt may not be appointed as donee of a lasting power of
attorney in relation to P’s property and affairs.
 s 12(3) Subsections (4) to (7) apply in relation to an instrument under which 2 or more
persons are to act as donees of a lasting power of attorney.
o (b) An instrument conferring LPA is made and registered in accordance with First Schedule; and
 Para 1(1), First Schedule: instrument must be
 (a) Be in prescribed form;
 (b) Comply with paragraph 2; and
o Para 2: The instrument must include
 (a) The prescribed information about the purpose of the
instrument and the effect of a lasting power of attorney;
 (b) Statement by the donor to the effect that he —
 (i) Has read the prescribed information or a
prescribed part of it (or has had it read to him); and
 (ii) Intends the authority conferred under the
instrument to mean authority to make decisions on
his behalf in circumstances where he no longer has
capacity;
 (d) Statement by the donee (or, if more than one, each of
them) to the effect that he —
 (i) Has read the prescribed information or a
prescribed part of it (or has had it read to him); and

23
  (ii) Understands the duties imposed on a donee of a
LPA under sections 3 (the principles) and 6 (best
interests); and
 (e) Certificate by a person of a prescribed description that, in
his opinion, at time when donor executes the instrument —
 (i) Donor understands the purpose of the
instrument and the scope of the authority conferred
under it;
 (ii) No fraud or undue pressure is being used to
induce the donor to create a lasting power of
attorney; and
 (iii) There is nothing else which would prevent a
lasting power of attorney from being created by the
instrument.
 (c) Any prescribed requirements in connection with its execution are satisfied
 Failure to comply with prescribed form
 Para 3(1) If instrument differs in an immaterial respect in form/mode of
expression from the prescribed form  to be treated by the Public Guardian
as sufficient in point of form and expression.
 3(2) Court may declare that an instrument which is not in the prescribed form
is to be treated as if it were, if it is satisfied that the persons executing the
instrument intended it to create an LPA
 Execution of instrument to be in accordance with r 8, MCR
 LPA must be registered to be effective
 For procedure for registration of the instrument, see para 4, First Schedule
 Registration can be done by donor and donee (Rule 1 MCR 2010)
 Minimum waiting period of 6 weeks before registration
 OPG will issue a Donee Identification Card after acceptance of registration
o (c) At the time when P executes the instrument, P has attained the age of 21 years and has
capacity to execute it.
• Certificate of a Professional – to certify that person has mental capacity to make LPA
o Who may give an LPA Certificate? (Rule 7 Mental Capacity Regulations 2010)
 A legally qualified medical practitioner who is registered as a specialist in psychiatry
under the Medical Registration Act;
 A legally qualified medical practitioner who is accredited by the Public Guardian to
issue LPA Certificates; and
 An advocate and solicitor of the Supreme Court who has in force a practicing certificate
under the Legal Profession Act
o Following persons disqualified from giving (r 7(2))
 (a) Family member of the donor;
 (b) Donee of that power
 (c) Donee of any other LPA which has been executed by the donor (whether or not it
has been revoked);
 (d) Family member of a donee within sub-para (b) and (c);
 (e) Director/ employee of a person other than an individual acting as a donee within
sub-para (b) and (c);
 (f) Biz partner or employee of donor; or a donee within sub-para (b) and (c)
 (g) Owner, a director, a manager or an employee of any care facility where the donor
lives or is cared for when the instrument is executed; or
 (h) A family member of a person within sub-para (g).
o Para 2(5), First Schedule: A certificate under sub-paragraph (1)(e) must
 (a) Be made in the prescribed form; and
 (b) Include any prescribed information.

24
 o Duties of the LPA certificate issuer
 Witness the donor sign part 1B of the instrument (r 8(3)(b), MCR)
 Certify the LPA Form by completing LPA Certificate at Part 4 of instrument and signing it
(r 8(4), MCA and s 2(1)(e) of First Schedule, MCA)
 Certify that donor understands the purpose of the LPA and the scope of the
authority conferred under it
 No fraud or undue pressure used to induce the donor to create an LPA and
 Nothing else that would prevent an LPA from being created
 Law Society v Sum Chong Mun [2016] SGDC 5
 Solicitor signed the Form as LPA certificate issuer but had not fulfilled duty
required of a certificate issuer –had not ensured that donor understood the
purpose of the instrument and scope of authority it conferred; had also taken
no steps to check that no fraud/ undue pressure was used to induce the donor
to create the LPA. He also did not see the donor sign the LPA; had instead
relied on representation of a fellow solicitor where donor had signed the LPA
in her presence when she did not see the donor do so. Donee who was
assistant of solicitor had signed the LPA on behalf of the donor
 Disciplined under s 83(2)(b) of LPA.
• 2 forms
o Form 1
 General LPA
 Can be filed by person
o Form 2
 Used to provide for specific powers
 Must be drafted by a lawyer
• Limits of authority conferred by LPA
o s 11(4): the authority conferred by a LPA is subject to —
 (a) The provisions of this Act and, in particular, sections 3 (the principles) and 6 (best
interests); and
 (b) Any conditions or restrictions specified in the instrument.
o General restriction: s 13(1)
 A donee may only make decisions where P lacks or the donee reasonably believes that
P lacks capacity
o Specific restrictions: The donee may not
 s 13(6): Consent or refuse the carrying out or continuation of health care treatment for
P (including the conduct of clinical trials) unless he expressly authorises in the LPA
 s 13(8): Make any decision wrt carrying out or continuation of life-sustaining treatment
or any other treatment that is necessary to prevent a serious deterioration in his
condition
 s 13(9) and s 13(9A): Make/amend CPF or insurance nominations or execute a will for P
 s 14(1): Make a gift of any of his property unless he expressly authorises him/her to do
so in his LPA
 s 13(2): Do any act to restrain him unless
 Donee reasonably believes the act is necessary in order to prevent harm to P (s
13(3)) and
 The restraining act is a proportionate response to the likelihood of his
suffering harm and the seriousness of the harm (s 13(4))
• Revocation of LPA: s 15, MCA
o A donor who revokes an LPA must notify the Public Guardian as well as the donee that he has
done so.
o The Public Guardian must cancel the registration of an instrument as an LPA if he is satisfied that
the power has been revoked as a result of the donor’s death.
o Patient’s bankruptcy will revoke the LPA regarding Property and Affairs

25
 o The LPA may be revoked due to various trigger events, which includes:
 Disclaimer by donee
 Lack of capacity of donee
 Dissolution of annulment of a marriage between donor and donee
• 3P dealing on the face of the LPA: s 16, MCA
o If no power created or power revoked are protected if they had no knowledge that the:
 LPA was invalid; or
 Donee had no powers to act on behalf of the donor
• Powers of court in relation to operation of lasting powers of attorney (s 18)
• What donee should do
o Ascertain whether lack of mental capacity (permanent or temporary incapacity)
o Whether one should take steps to help person understand issue /make decision).
o If decision has to be made, should be considered in the light of P’s beliefs, values, wishes,
preferences i.e. have best interests at heart
o Practically should consult caregivers, family members who know P’s family members best
o Donee should not take over the decision-making process unless very necessary, and cannot
supplant own preference to that of P

APPOINTMENT OF DEPUTY
• Court’s power to make decisions and appoint deputies (s 20, MCA)
o If P lacks capacity in relation to a matter/s concerning –P’s personal welfare or his property and
affairs (s 20(1)), the court may
 (a) By making an order, make the decision or decisions on P’s behalf in relation to the
matter/s; or
 (b) Appoint a person (a “deputy”) to make decisions on P’s behalf in relation to the
matter/s.
o Court’s powers subject to Act’s provisions and s 3 (principles) and s 6 (best interests) (s 20(3))
o When deciding whether it is in P’s best interests to appoint a deputy, court must have regard (in
addition to s 6) to the principles that (s 20(4))
 (a) A decision by the court is to be preferred to the appointment of a deputy to make a
decision; and
 (b) The powers conferred on a deputy should be as limited in scope and duration as is
reasonably practicable in the circumstances.
o Court may revoke deputy’s appointment/ vary powers conferred on him if (s 20(8)):
 Deputy has behaved/ is behaving in a way that contravenes the authority conferred on
him by the court or is not in P’s best interests; or
 Proposes to behave in a way that would contravene that authority/ would not be in P’s
best interests
o Court can appoint deputy/ make decision in relation to any matter even though P has not
reached 21 years if court considers it likely that P will still lack capacity to make decisions in
respect of that matter when he is 21 (s 21(1))
 Appointment of parents/ guardian of P as deputy is preferred (s 20(2))
• Who can apply to be a deputy?
o R 176(3)(a), FJR –permission not required where applicant is related by blood/ marriage to P
o R 176(2), FJR subject to s 38(1), MCA –must apply for permission unless falls within (1)(a) to (e)
 S 38(3), MCA: In deciding whether to grant permission, court shall have regard to
 Applicant’s connection with the person to whom the application relates;
 Reasons for the application;
 Benefit to the person to whom the application relates of the proposed
order /directions; and
 Whether the benefit can be achieved in any other way.
• Restrictions on deputy’s power (s 25)

26
 o No power to make decision on P’s behalf in relation to a matter if he knows/ has reasonable
grounds for believing that P has capacity in relation to the matter (s 25(1))
o (2) Nothing in section 20(5) or 22 permits a deputy to be given power —
 (a) To prohibit a named person from having contact with P; or
 (b) To direct a person responsible for P’s health care to allow a different person to take
over that responsibility.
o (3) A deputy may not be given powers with respect to the —
 (a) Disposition of P’s property by making gifts;
 (aa) Making, on P’s behalf, of any nomination under section 49L(2) or 49M(2) of
Insurance Act;
 (ab) Where any nomination under section 49L(2) or 49M(2) of the Insurance Act has
been made by P or by the court on P’s behalf, revoking, on P’s behalf, of that
nomination under section 49L(7) or 49M(4), as the case may be, of that Act;
 (b) Execution for P of a will;
 (ba) Executing under section 15(6A) or 25(1) of the CPF Act, on P’s behalf, of any
memorandum under section 25(1) of that Act;
 (bb) Where any such memorandum has been executed, or any nomination has been
made under section 25(1) of that Act, by P or by the court on P’s behalf, revoking, on
P’s behalf, of that memorandum or nomination, as the case may be; or
 (c) Carrying out or continuation of —
 (i) Life-sustaining treatment on P, whether or not amounting to extraordinary
life- sustaining treatment within the meaning of section 2 of the Advance
Medical Directive Act; or
 (ii) Any other treatment on P which a person providing health care reasonably
believes is necessary to prevent a serious deterioration in P’s condition.
o (4) A deputy may not be given power to make a decision on behalf of P which is inconsistent
with a decision made, within the scope of his authority and in accordance with this Act, by the
donee of a LPA granted by P (or, if there is more than one donee, by any of them).
o (5) The authority conferred on a deputy is subject to the provisions of this Act and, in particular,
sections 3 (the principles) and 6 (best interests).
o (6) A deputy may not do an act that is intended to restrain P unless 4 conditions are satisfied.
 (7) The first condition is that, in doing the act, the deputy is acting within the scope of
an authority expressly conferred on him by the court.
 (8) The second condition is that P lacks, or the deputy reasonably believes that P lacks,
capacity in relation to the matter in question.
 (9) The third condition is that the deputy reasonably believes that it is necessary to do
the act in order to prevent harm to P.
 (10) The fourth condition is that the act is a proportionate response to —
 (a) The likelihood of P’s suffering harm; or
 (b) The seriousness of that harm.
o (11) For the purposes of this section, a deputy restrains P if he —
 (a) Uses, or threatens to use, force to secure the doing of an act which P resists; or
 (b) Restricts P’s liberty of movement, whether or not P resists,
 Or if he authorises another person to do any of those things.
• Deputies have no power to make the following decisions (s 26):
o Consenting to marriage.
o Consenting to touching of a sexual nature.
o Consenting to divorce on the basis of 3 years’ separation.
o Consenting to a making of an adoption order.
o Adopting or renouncing a religion.
o Receiving treatment for change of gender.
o Consenting or revoking consent to treatment for sexual sterilisation.
o Consenting or revoking consent to abortion.

27
 o Registering or withdrawing an objection regarding the removal of an organ from any person
upon death.
o Making or revoking an advance medical directive.
o Making or revoking a gift of a body or any part of a body.
• Deputy’s duties
o To keep records
o To furnish annual accounts to the Public Guardian
o Bound by the Code of Practice
 s 41(6) MCA: Court conducting any civil/ criminal proceedings can take into account
whether the provisions relevant to the question is complied with
o (Deputy's power ends if order of court states a specific date when it expires/ varied/cancelled)
• HOW TO APPLY TO APPOINT A DEPUTY –Procedural requirements (see para 54, PD)
o Originating Summons (Form 217 of PD)
 Need to state clearly what powers you are seeking
o Supporting Affidavit (Form 218 of PD)
o Doctor's Affidavit exhibiting the medical report (Form 224 of PD):
 See more in para 54(9), PD
 E.g. contain clear opinion as to whether P lacks capacity in relation to the
matters specified
 Doctor's medical report must be current and dated not more than 6 months
before the date of your application to the Court.
 Contain a clear opinion on P’s prognosis
o Service of application on named Dfs and relevant persons (r 179, FJR)
 Serve within 21 days after date on which application is filed
 Relevant persons who must be served: para 50(1) of FJCPD
 Persons who have an involvement in P's life and/or who are likely to have an
interest in the application.
o Often, P’s immediate family members, by virtue of their relationship
to P, are likely to have an interest in being notified that an application
has been made to the Court concerning P.
 Para 50(2): ‘Relevant persons’ for purposes of r 179 of FJR will often include
the following immediate family members:
o (a)  P’s spouse;
o (b)  P’s children (aged 21 and above);
o (c)  P’s parents or guardians; and
o (d)  P’s brothers or sisters (aged 21 and above).
 Para 50(3): presumption that immediate family members are likely to have an
interest may be rebutted where applicant is aware of circumstances which
reasonably indicate that P's immediate family should not be served.
o E.g. family member has had little/no involvement in P's life and has
shown no inclination to do so
o In some cases, P may be closer to persons who are not immediate
family members and if so, it will be appropriate to effect service on
them instead of the immediate family members.
 50(4)  Applicant should serve the application, supporting affidavits and Notice
to Relevant Person in Form 222 in Appendix A, PD on relevant persons.
 Para 50(6): Apart from immediate family members, other relevant persons
who are likely to have an interest in the application concerning P and who
should be served include:
o (a) Any other relatives or friends who have a close relationship with P;
o (b) Any person who has a legal duty to support P;
o (c) Any person who will benefit from P’s estate; and
o (d) Any person who is responsible for P’s care.

28
  If there is no such person to the best of the plaintiff’s or applicant’s
knowledge, he is to state this in his supporting affidavit.
 Consent of relevant persons
 Court may dispense with service of application on relevant person on
application of applicant if they have given their consent (para 51(1))
 If Relevant Persons who have consented to your application, must file their
Consents (Form 221 of PD) –para 51, PD
o P should be notified of the application (r 181, FJR)
 Unless there is a dispensation of service under r 181(6))
 See r 182 for matters in respect of which P must be notified
 Para 52, PD for more info
Others
• Whistle blowing protection: s 43 MCA
o Anyone who knows, suspects or believes that a person who lacks capacity is not properly looked
after or needs care or protection may report to the Public Guardian
 Protection from disclosure of identity in any court proceedings
 Protection from any court of tribunal proceedings for breaches of ethics etc.
o Generally a health care worker owes a duty of confidentiality to its patient, if health care worker
acts in good faith and made notification to public guardian, the Act gives protection to
healthcare worker (wont incur civil or criminal liability)
• Protection from liability for caregivers (acts in connection with care and treatment): s 7 MCA
o Best interest
o Without negligence
o Exceptions: acts concerning Advanced Medical Directive or conducting of clinical trials
• Claims & reimbursements: ss 9 & 10 of the MCA
o For necessary goods and services
o From money in the P’s possession
• Public guardian’s role
o Can supervise the deputies appointed by the court under s 31(1)(c)
o Check accounts
o Direct a member of the Board of Visitors to visit and investigate
o Investigate info received under s 43 (for whistle blowers and prosecute deputy for ill-treatment)
o Require info and docs, require persons to attend at a specific time and place (s 32)

MENTAL CAPACITY
• General principles
o s 3(2): A person is assumed to have capacity unless it is established that he lacks capacity
o s 3(3): To take practicable steps to help him to make his own decisions before it is concluded
that he has no capacity (donee cannot assume that he has no mental capacity)
o s 3(4): Unwise decision does not equate to lack of capacity.
o s 3(5): Any act done by donee/deputy must be in his best interests – Section 6
o s 3(6): Deputy to consider whether an act can be effectively achieved in a less restrictive manner
for that person.
• Test for lack of mental capacity is specific to each subject (s 4)
o s 4(1): A person lacks capacity in relation to a specific matter if at material time he is unable to
make a decision for himself in relation to the matter because of impairment of, or a
disturbance in the functioning of the mind or brain.
o AUR v AUT
 Test of mental capacity is not a blunt all-or-nothing condition, but to be treated as
being issue-specific. A person may not have sufficient capacity to be able to make
complex, refined or major decisions but may still have the capacity to make simpler or
less momentous ones, or to hold genuine views as to what he wants to be the outcome
of more complex decisions or situations

29
  Test for application under s 36 of the MCA is lower than the test to rebut that the
person has mental capacity.
• When is a person ‘unable to make a decision for himself’?
o A person is unable to make decision if he cannot (s 5(1)):
 Understand the information relevant to the decision;
 Retain that information;
 Use or weigh that information as part of the process of making the decision; or
 Communicate his decision whether by talking, using sign language or any other means.
o s 5(2): A person is not to be regarded as unable to understand the information relevant to a
decision if he is able to understand an explanation of it given to him in a way that is appropriate
to his circumstances (using simple language, visual aids or any other means).
o S 5(3): The fact that the patient cannot retain the information for a short period only does
prevent him from being regarded as unable to make a decision permanently.
• Best interests (s 6)
o s 6(1): In determining what is best interests, deputy should not rely on just age and appearance
of that person, or an aspect of his behaviour, which may lead others to make unjustified
assumptions about what might be his best interests.
o s 6(2): To consider all relevant circumstances.
o s 6(3): Whether at some point, the person may have capacity in relation to the matter in
question, and if it appears likely that he will, when that is likely to be.
o s 6(4): Must, so far as is reasonably practicable, permit and encourage the person to participate,
or to improve his ability to participate, as fully as possible in any act done for him and any
decision affecting him.
o s 6(5): Where the determination relates to life-sustaining treatment, he must not, in considering
whether the treatment is in the best interests of the person concerned, be motivated by a desire
to bring about his death.
o s 6(6): Where the determination relates to the disposition or settlement of the person’s pty, he
must be motivated by a desire to ensure, so far as is reasonably practicable, that the person’s
pty is preserved for application towards the costs of the person’s maintenance during his life.
o s 6(7): He must consider, so far as is reasonably ascertainable
 (a) P’s past and present wishes and feelings (and, in particular, any relevant written
statement made by him when he had capacity);
 (b) Beliefs and values that would be likely to influence his decision if he had capacity;
and
 (c) Other factors that he would be likely to consider if he were able to do so.
o s 6(8): Must take into account, if it is practicable and appropriate to consult them, the views of
 (a) Anyone named by the person as someone to be consulted on the matter in question
or on matters of that kind;
 (b) Anyone engaged in caring for the person or interested in his welfare;
 (c) Any donee of a lasting power of attorney granted by the person; and
 (d) Any deputy appointed for the person by the court,
 As to what would be in the person’s best interests and, in particular, as to the matters
mentioned in subsection (7).
o S 6(9) The duties imposed by subsections (1) to (8) also apply in relation to the exercise of any
powers which
 (a) are exercisable under a lasting power of attorney; or
 (b) are exercisable by a person under this Act where he reasonably believes that
another person lacks capacity.
o S 6(10): In the case of an act done, or a decision made, by a person other than the court, there is
sufficient compliance with this section if (having complied with the requirements of subsections
(1) to (8)) he reasonably believes that what he does or decides is in the best interests of the
person concerned.
• Wong Meng Cheong v Ling Ai Wah

30
o Facts
 Pfs were sons and Df was partner and “effective wife”
 Wong had son with Df called WMM – 3rd deputy
 Pfs & WMW were appointed members of committee of person and estate of Wong
 Pfs & WMW were deemed deputies when MCA came into force in 2010.
o Court held:
 Wong was unlikely to suffer from Alzheimer’s disease at the time he transferred the pty
to his effective wife PL but court held that even if he did suffer from impairment of
mind at the time, he still had mental capacity to make his own decisions himself
regarding the transfer of the pty to her.
 Both the wife and long time companion were sufficiently connected to Dr Wong and
are deemed “interested persons” under s 38(2) of the MCA.
 2 components of the Statutory Test for Capacity in s 4(1) of the MCA:
 Diagnostic threshold of impairment of brain or mind function; and
 That it must result in functional inability to make a decision due to lack of
elements in s 5(1) of the MCA.
 Powers and authority conferred on the deputies under s 25 (5) of the MCA have to be
subject to s 3 (“the Principles”) and s 6 of the MCA (Best Interests) and exercised in the
best interest of the person and weigh the facts and circumstances to arrive to an
outcome that will maximally promote the welfare of the person.
 Court has power to revoke or rename deputy under s 20(8) MCA if deputy acts in a way
that was not in the person’s best interest
 Trustees should avoid litigation unless there is such a chance of success to
render it desirable in the interests of estate
 Pf’s action aimed at increasing their own share of inheritance rather than
welfare of the patient, the father, thus removed the 2 deputies who were the
sons of the 1st wife, and left WMW as the sole deputy.

31