Succession for the RES Exam

Unit 2.9 deals with what happens to property when its owner dies: whether there is a valid will, who inherits if there is not, how Muslim estates are distributed, and who has authority to sell. For a salesperson the practical question is nearly always the same one — who can sign as seller.

Making a valid will under the Wills Act

A will is a document by which a person (the testator) directs how their property is to pass on death. The governing statute is the Wills Act 1838. Section 4 states that no will made by a person under 21 years of age is valid; the only exception, in section 27, lets a soldier on actual military service, or a mariner or seaman at sea, dispose of personal estate informally even if under 21.

The formalities are in section 6. The will must be in writing and signed at the foot or end by the testator, or by someone else in the testator’s presence and by the testator’s direction. The signature must then be made or acknowledged in the presence of 2 or more witnesses present at the same time, and those witnesses must subscribe the will in the testator’s presence. No form of attestation is necessary. A will signed in front of one witness and later shown to a second does not satisfy section 6, and the estate then passes on intestacy.

Three related rules recur. Under section 10, a gift to an attesting witness, or to that witness’s wife or husband, is “utterly null and void” — but the will stays valid, the witness remains competent, and the failed gift falls into the residue. Section 11 allows a creditor or a creditor’s spouse to witness a will charging the estate with that debt, and section 12 allows an executor to witness without losing the appointment.

When a will is revoked

Section 15 sets out the only ways a will can be revoked: by the testator’s marriage; by a later will or codicil; by a writing declaring an intention to revoke, executed in the same way as a will; or by burning, tearing or otherwise destroying the will, by the testator or by someone in the testator’s presence and at the testator’s direction, with the intention of revoking it.

The destruction limb needs both elements, so a will accidentally shredded by a domestic helper, or deliberately torn up by an adult child acting on their own initiative, is not revoked.

Marriage is the other trap. Section 13(1) revokes a will on the testator’s marriage; section 13(2) excepts a will made on or after 29 August 1938 that is expressed to be made in contemplation of a marriage. So a testator who makes a will and then marries has usually died intestate unless the will itself says it was made in contemplation of that marriage. Divorce, by contrast, does not revoke a will in Singapore, so a gift to a former spouse still takes effect unless a new will is made.

Intestate succession under the Intestate Succession Act

Where a non-Muslim dies without a valid will, the estate is distributed under section 7 of the Intestate Succession Act 1967, in which “issue” means children and their descendants.

Two mechanics matter more than memorising the whole ladder. The spouse takes the whole estate only where there are neither issue nor surviving parents; where there are parents but no issue, the spouse takes a half and the parents share the other half, and siblings inherit only where there is no spouse, no issue and no parent. And the descendants of a child who died before the intestate take that child’s share between them — distribution per stirpes, by the line, not per head.

A worked example makes that concrete. An intestate leaves $900,000, a wife and three children, one of whom predeceased him leaving two children of his own. The wife takes $450,000. The children’s half of $450,000 is divided into three lines of $150,000: each surviving child takes $150,000, and the two grandchildren share their late father’s line, taking $75,000 each. The common error is to divide the children’s half among four people, treating each grandchild as a child.

• Spouse, no issue, no parent: spouse takes everything
• Spouse and issue: spouse one-half, issue share the other half (per stirpes)
• Issue, no spouse: issue take the whole estate
• Spouse and parent(s), no issue: spouse one-half, parent(s) one-half
• Parent(s) only: parents take everything
• Then siblings, then grandparents, then uncles and aunts
• None of those classes: the Government takes the estate

Muslim estates: faraid, wasiat and the Inheritance Certificate

The estate of a Muslim in Singapore is not distributed under the Intestate Succession Act. Under the Administration of Muslim Law Act 1966 it is distributed according to Muslim law — faraid, which the Syariah Court describes as the Islamic law of inheritance derived from the Quran and hadith, the word referring to the fixed portions allocated to lawful heirs.

The procedure has two stages, and the exam likes to reverse them. A person claiming to be a beneficiary first applies to the Syariah Court for an Inheritance Certificate, which states who is entitled to share in the estate and the share each takes; it is issued on the facts the applicant supplies, without the court hearing evidence or making findings of fact, and only faraid beneficiaries are certified. The family then applies to the Family Justice Courts for probate or letters of administration, with the certificate forming part of that application. The Syariah Court does not grant probate and does not register transfers of land.

Under the Shafi’i shares applied in Singapore, a widow takes one-eighth of her husband’s estate where he leaves children and one-quarter where he leaves none; a widower takes one-quarter where there are children and one-half where there are none; and each son takes double a daughter’s share. A wasiat, a Muslim will, is limited to one-third of the estate and may benefit only persons who are not faraid heirs, the remaining two-thirds passing under faraid — so a bequest of half the estate to a son is doubly defective. Some assets never enter the faraid pot: CPF savings covered by a valid nomination, nominated insurance proceeds, and property held as joint tenants.

Probate, letters of administration and who can sign as seller

A personal representative needs a grant from the court before dealing with the deceased’s property. Where there is a valid will, the executor named in it applies for a grant of probate. Where there is no valid will, a beneficiary applies for letters of administration and, once appointed, is the administrator. Both grants are made by the Family Courts and the Family Division of the High Court.

An applicant for letters of administration must be at least 21 and must not lack mental capacity, so a 19-year-old child cannot apply even if fully entitled to a share; priority generally follows entitlement, starting with the spouse. Where the estate is worth $50,000 or less, the Public Trustee may administer it without a grant if the criteria are met.

For a salesperson this produces one hard rule: until the grant is issued, nobody can give good title to the deceased’s property. A beneficiary who is “obviously going to inherit” cannot sign an option to purchase as owner, and any agency agreement with the deceased has already ended, because agency is terminated on the death of the principal.

What happens to jointly held property on death

This is the most heavily examined point in the unit, and it sits at the junction of succession and co-ownership. Where co-owners hold as joint tenants, the right of survivorship operates at the moment of death: the deceased’s interest is extinguished and the survivor takes the whole. The property never forms part of the estate, so neither the will nor the intestacy rules nor faraid can touch it, the executor has no say in it, and a gift in the will of “my half share” simply fails.

Because the property is outside the estate, no grant is needed. The register is brought up to date by lodging a notification of death supported by the death certificate, after which the survivor is shown as sole proprietor and can sell. A will does not sever a joint tenancy, because survivorship operates at death before the will takes effect; the only way to make a share pass under a will is to sever during the owner’s lifetime.

Where co-owners hold as tenants in common, the position reverses. Each holds a distinct undivided share, there is no survivorship, and the deceased’s share passes under the will, on intestacy, or under faraid. Here a grant is needed, and the personal representatives lodge a transmission application with it before they can sell the share or transfer it to the beneficiaries.

Terms to know

Testator

The person who makes a will.

Intestacy

Dying without a valid will, so that the estate is distributed under the Intestate Succession Act (or, for a Muslim, under faraid).

Per stirpes

Distribution by line of descent, so that the children of a predeceased beneficiary share the share their parent would have taken.

Grant of probate

The court’s confirmation of the authority of the executor named in a valid will to administer the estate.

Letters of administration

The grant made where there is no valid will, appointing an administrator to administer the estate.

Faraid

The Islamic law of inheritance, under which fixed shares of a Muslim’s estate are allocated to the lawful heirs.

Wasiat

A Muslim will, limited to one-third of the estate and only in favour of persons who are not faraid heirs.

Transmission application

The application lodged with a grant so that the personal representatives are registered as proprietors of the deceased’s registered interest in that capacity.

Frequently asked questions

Official sources

• Wills Act 1838 — Singapore Statutes Online
• Intestate Succession Act 1967, s 7 — Singapore Statutes Online
• Administration of Muslim Law Act 1966 — Singapore Statutes Online
• Judiciary — Probate and administration
• Judiciary — Apply for letters of administration
• Syariah Court — Inheritance Certificate overview

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