For a will to be valid, there needs to be both formal validity as well as essential validity.

 

Formal validity

We will first deal with the issue of formal validity.

If a testator died before 26th of June 1992, common law would govern the formal validity of the will. If a testator died on or after 26 June 1992, section 5 of the Wills Act 1838 (WA) would govern the formal validity of the will (section 5(9) of the WA).

(It is rare for us to deal with testators who died before 26th June 1992 and hence for discussions sake we will be dealing with the formal validity as stated in section 5 of the WA.)

 

A will can be executed properly according to the laws of the country that it was executed in

As stated in section 5(2)(a) of the WA, a will shall be treated properly executed if it was properly executed in accordance with the laws of the territory where it was executed. Therefore, if the testator executed the will in another country other than Singapore and it was properly executed in accordance with the laws of that country, the will is properly executed and hence it is formally valid.

How a will is properly executed in Singapore

As stated in section 5(2) of the WA, a will shall be treated properly executed if it was properly executed in accordance with the laws of the territory where it was executed. Therefore, as the deceased executed the will in Singapore, it had to adhere to be in writing, signed by the testator in the presence of 2 or more witnesses present who will similarly sign on the will to attest that they witnessed the testator’s signature (section 6 of the WA). Only such compliance would render a will that was executed in Singapore formally valid.

A will can be properly executed in another country according to Singapore’s laws

As stated in section 5(2)(b) of the WA, a will shall be treated properly executed if it was conformed to the internal law in force in the territory where the testator was domiciled at the time when the will was executed. Therefore, if the testator’s domicile is Singapore and he executed the will in accordance with Singapore’s laws while in another country, the will would be formally valid.

 

Essential validity

We next deal with the issue of essential validity. Even if a will is found to be formally valid, if it is not essentially valid, the will will not be deemed to be valid.

Essential validity relates to the capacity of the testator to make the will.

 

The person propounding the will bears the burden of proving the validity of the will (As held in the Court of Appeal case of Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (“Muriel Chee”) at [52]. Therefore, the propounder has to prove that the testator had testamentary capacity at the material time.

As held by the Court of Appeal in Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (“Muriel Chee”) at [37] which applied the principle in Banks v Goodfellow (1870) LR QB 549, the test for essential validity consists of 3 limbs:

  • The testator must have the mental capacity to make the will;
  • The testator must have knowledge and approval of the contents of the will; and
  • The testator must be free from undue influence or the effects of fraud.

All 3 limbs must be proven (i.e., separately pleaded) to make out essential validity of the will.

Limb 1: The testator had the mental capacity to make the will.

The propounder of the will bears the burden of proving that the testator had testamentary capacity at the material time (Muriel Chee at [40]). The material time refers to the time around when the testator made the will.

When dealing with a testator with no mental illness

In the current situation, the testator, was not known to be suffering from any kind of mental disability. Therefore, it is presumed that he had testamentary capacity (Muriel Chee at [40]). We can. support this presumption if the will is rational when considering the terms as well as the identities of the beneficiaries of the will (things like if the testator gives $1 to someone, that on the surface is not rational). This supports the assertion that the testator had testamentary capacity (Muriel Chee at [40]).

When dealing with a testator with no mental illness

In the current situation, the testator, was known to be suffering from an incapacitating mental illness before the execution of the will. This illness would result in a loss of testamentary capacity, and it is presumed that the testator continued to lack this same testamentary capacity up to the time of execution of his will (Muriel Chee at [41]). This then results in the propounder of the will bearing the burden of proving that the illness did not affect the testator’s capacity at the time of the execution of the will (Muriel Chee at [41]). (things like getting a psychiatrist to examine the testator at the point or close to the point of making the will)

To prove that the testator had testamentary capacity at the time of execution of the will, the propounder of the will has to prove that the essential requisites of testamentary capacity are made out, namely:

  1. The testator understands the nature of the act and what its consequences are;
  2. He knows the extent of the property that he is disposing
  3. He knows who his beneficiaries are and can appreciate their claims to his property; and
  4. He is free from an abnormal state of mind that might distort feelings or judgements relevant to making the will.

(Muriel Chee at [37] affirming the essential requisites laid out by the High Court in George Abraham Vadakathu v Jacob George [2009] 3 SLR(R) 631 at [29])

If limb 1 is fulfilled and the testator is deemed to have testamentary capacity, we must subsequently consider limb 2.

Limb 2: The testator has knowledge and approval of the contents of the will.

If limb 1 is proven, in the absence of suspicious circumstances, it is presumed that the testator knew and approved the contents of the will at the time of execution (Muriel Chee at [46]).

If there are special circumstances, this presumption will not apply

In the alternative, certain scenarios might constitute a special circumstance. As held in the Court of Appeal case of Lian Kok Hong v Lian Bee Leng and another [2016] 3 SLR 405 at [58]-[59], the suspicious circumstances had to attend or be at least relevant to the preparation and execution of the will itself.

As held in Muriel Chee at [46]-[47], all forms of suspicious circumstances are considered and thus the threshold is low. Therefore, we must consider this alternative where the presumption will not arise because of the presence of suspicious circumstances. Hence the evidential burden of proving that the testator has knowledge and approval of the contents of the will remains with the propounder of the will (Muriel Chee at [46]).

(While we can make the argument that certain scenarios do not constitute as special circumstances, as the threshold is low, the prudent and probably wise thing to do would be to also make the argument that the testator has the knowledge and approval of the contents of the will.)

Therefore, if the presumption remains or if it does not remain but it is proven that the testator has knowledge and approval of the contents of the will, limb 2 is fulfilled and we next consider limb 3.

Limb 3: The testator Is free from undue influence or the effects of fraud.

Fraud in this case is common law fraud. Undue influence here refers to coercion such that the testator was coerced into making a will which he did not personally wish to make. The coercion must be of such intensity that it overpowered the volition of the testator without convincing him (UWF and another v UWH and another [2021] 4 SLR 314 at [221]-[222]).

(Note that this undue influence is distinct from the undue influence in contract law as enunciated in the Court of Appeal case of BOM v BOK [2019] 1 SLR 349. The undue influence in Muriel Chee is that of coercion.)