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4 human factors to note in wills

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Tan Ooi Boon on 03 Jan 2021

The Straits Times

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It's not the law that makes the administration of wills complicated, but people like us, with all our faults and foibles.

 

Issues arise because the testators (owners of the wills) have not given enough thought to individuals who could cause trouble after their deaths.

 

One case here involved a rich businessman who appointed both his secretary and lawyer as the executors of his will as they were most familiar with his business. But when he died, the relatives who were beneficiaries were upset to discover that none of them had been put in charge to manage the distribution of the assets.

 

They began to cast aspersions on both the executors and even accused them of being in cahoots to hide money from them.

 

The continuous attacks prompted the secretary, who had in-depth knowledge of her late boss' business, to resign, leaving the poor lawyer to soldier on alone. As a result, he took more than 15 years to sort out all the man's assets.

 

1. Pick executors wisely

 

Veteran lawyer Sim Bock Eng, who chairs Singapore's Society of Trust and Estate Practitioners, an association for professionals specialising in family inheritance and succession planning, says the role of executors is very important as they have to ensure that your wishes are carried out.

 

So it is paramount that you not only appoint someone you trust but that the person must also be capable of carrying out all the tasks set out in your will.

 

"Also, you should pick someone who is likely to statistically outlive you," says Ms Sim, who is also head of WongPartnership's specialist and private client disputes practice.

 

While it is common for people to appoint relatives as executors, you should choose those who are unlikely to be at loggerheads with your beneficiaries.

 

In a recent case, a man named his brothers as his executors but they could not get along with the widow. On her part, the widow was upset that her inheritance and that of her children's was being managed by the brothers.

 

Things turned really sour when the brothers sold the house, which was occupied by the widow, because they needed money to pay off their late brother's debts.

 

If you cannot find a suitable executor, you can appoint a professional trust company, especially if you have complex assets here and abroad. But such fees can be high as the charges are usually based on a percentage of the assets.

 

However, such third-party executors may help some families avoid court battles.

 

A wealthy woman here has chosen this option in her will because she has four children who do not get along. She knows that if she had appointed any of the children as the executor, the rest would likely end up suing their siblings.

 

2. Have 'two wills' in one

 

Many couples have simple wills that designate each other as the beneficiaries of their assets. While there is nothing wrong in such arrangements, it may be prudent to create "a second will" in the same document should one of them die before the maker of the will.

 

For instance, if a husband names his wife as the sole beneficiary and she dies first, the document will become invalid. This can be avoided if the husband has a contingency term in his will that names another set of beneficiaries should the wife die before him.

 

This is prudent because it may not be possible to make another will in old age if one spouse dies. Also, as the Covid-19 pandemic has shown, a person may not even get a chance to make another will if tragedy hits the whole family.

 

3. Use of exclusion and special clauses to avoid trouble

 

Let's face it, if everyone is nice and decent, there would be no need to have wills, and assets would just pass on smoothly to all deserving beneficiaries.

 

But the reality is just plain ugly - even if you state clearly that you are leaving everything to your named beneficiaries, you cannot stop other relatives from wanting a share of your assets, especially if you are wealthy.

 

After all, if the stakes are high, people can be driven to file lawsuits and make claims just to pressure the beneficiaries into making a payment as a settlement.

 

So if you know there are potential trouble-makers who are likely to harass your beneficiaries, you can make their plan much harder to succeed by having such an exclusion clause: "I declare that I have considered A, B and C and have decided not to give them anything."

 

With such a clear statement, the only way that A, B and C can have the slightest chance of winning is to prove to a judge that you were not mentally sound when signing the will.

 

But what if your beneficiaries are the ones who are likely to sue each other the moment you are no longer around?

 

Ms Sim says: "You will be amazed how many clients are concerned that there should not be any litigation or 'airing of dirty laundry' when they are gone.

 

"It is not unusual for us to include clauses in the will to the effect that if any of the beneficiaries were to contest the will, they will receive nothing."

 

That the courts in Singapore have yet to hear cases involving such a clause could be a sign that it is effective in making people think twice before making a fuss over their families' wills.

 

4. Never write your own will

 

Do a search online and you will find many examples of wills. If you think you can copy these and write your own will, think again.

 

Don't be penny wise and pound foolish when it comes to such things because you are not saving any money when you write your own will; you are merely putting your beneficiaries at risk and may cost them a lot more money.

 

A woman in a recent case wrote her own will, saying she wanted to give all her assets to her four children in equal shares. Indeed, all the children were present when she signed the document.

 

But this will is not valid because two witnesses are required to sign the document. Even if two of the children offered to sign as witnesses, they would deprive themselves of any share because witnesses cannot inherit anything from the estate.

 

The family is now in a quandary because the woman is in poor health and not mentally capable of signing another will. If she dies, half of her assets will go to her husband, who is still alive, while her four children will each have a much smaller share.

 

If you engage a law firm to write up your will, you can do this alone because two lawyers will usually act as your witnesses.

 

So far, this feature has only touched on the human side of wills. Invest will shed light on the pitfalls of asset distributions next Sunday.

 

Suffice to say that the complications that come with legacy planning should make you think about doing some things differently; why leave things undone upon your death when you can achieve a lot more when you are still around?

 

For instance, why wait until death to help charities when it is far more fulfilling to do so when you are alive.

 

Similarly, why wait until you are no longer around to show your loved ones you care, not just by giving them money but also sharing your wisdom, which is priceless.

 

Source: The Straits Times © Singapore Press Holdings Limited. Reproduced with permission.

 

 

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