Will and Probate

A. FINAL WILL AND TESTAMENT

A Will sets out how a person's assets are to be distributed after his or her death. Any person over the age of 18 may make a Will. 

1. What are the Advantages of Creating a Will?

If a person makes a Will, he/she can:-

1. arrange how his/her assets will be shared amongst relatives (under the law of intestate there may be situations where the outcome may not be desired by the testator - e.g. the estate to be shared between the spouse and the siblings);
2. leave assets to beneficiaries who are not related to him/her, e.g. de-facto spouse, friends, and charities;
3. appoint an executor(s) (number of executors not to exceed FOUR) to manage and distribute the assets;
4. executor(s) will be able to get hold of the assets almost immediately instead of having to wait for the letter of administration from the court, which may take a few months and may be problematic for your loved one if they need money for the living expenses/funeral in the near future;
5. save on stamp duties from the future transfer of properties should the law of intestate result in splitting real properties amongst many different owners. 

2. Formalities of Making a Will.

One can make a Will through the forms provided, or seek help from a solicitor. The advantages of going to a solicitor are:

1. solicitors generally have more experience in drafting Wills;
2. should it be necessary to prove (after death) intention and mental capacity at the time the Will is prepared and signed, the solicitor can attest to it; and
3. a solicitor can witness, keep and register the Will, and can produce the Will upon death.

 The following formalities should be followed for the Will:

1. all of the intentions of the testator should be produced in writing;
2. the Will is to be signed by (i) the testator or (ii) a person in the presence of the testator under his / her direction (not recommended unless there are special circumstances, such as physically unable to sign it);
3. testator's signature and those of the witnesses should preferably be placed at the end of the Will;
4. the Will should be dated before it is signed;
5. testator signature should be witnessed by two persons (aged 18 or above – some jurisdictions may have different number or age requirements, please check with a local solicitor) present at the same time who should then sign the Will at the same time; 
6. the witness and his/her spouse should not be a beneficiary under the Will. If a beneficiary or his/her spouse witnesses the Will, the gift to the beneficiary under the Will is forfeited;
7. an executor can however also be a beneficiary under the Will.

3. Execution of a Will.

The essential requirements of a Power of Attorney are as follows:

• A Will should be executed by deed with all intentions in writing.
• The instrument creating a Will must be signed and sealed by the principal in the presence of two witnesses. 
• The Will should be dated before it is signed. 
• The witness and his/her spouse should not be a beneficiary under the Will. If a beneficiary or his/her spouse witnesses the Will, the gift to that beneficiary under the Will is generally void.

B. LIVING WILL

A Living Will is different from a Last Will and Testament.  It is an essential document that is very often overlooked. It is a document that lets people state their wishes for end-of-life medical care, or how to manage their financial affairs, in case they become incapacitated / lack mental capacity / unable to communicate their decisions. This will also benefit their loved ones, who often have to make decisions on their behalf when patients get sicker or are not able to express themselves, by easing the burden of decision-making because they know more about what their patient wants. The Living Will generally has no power after death. A living will be revoked at any time. The document can take effect as soon as it’s signed, or only when it’s determined that the person can no longer communicate his or her wishes about treatment.

There are various different types of Living Will one can enter into:

1. Advance Directives

Advance directives set out how the patients want to be treated if they become seriously ill and unable to communicate their wishes. Depending on the jurisdiction, there may or may not be legislation to give such requests legal standing. Demands could include, for example, not being given cardiopulmonary resuscitation if such a situation arises.

Advance Directives may or may not be a legally binding document depending on the jurisdiction, but the doctors will generally follow the stated wishes or assign the case to another doctor if the wishes go against the doctor's professional beliefs.

To be valid, advance directives must meet the local requirements regarding notarization or witnesses. For example, a witness must not be a person who is a beneficiary under –

1. the will of the maker of the Living Will; or
2. any policy of insurance held by the maker of the Living Will; or
3. any other instrument made by or on behalf of the maker of the Living Will.

Or one of the witnesses must be a medical practitioner etc. Please consult a local lawyer as each jurisdiction may be different.

2. Enduring / Continuing / Durable Power of Attorney

Some individuals may not be ready to make the decisions but wish someone else to make the decisions on their behalf.  Please refer to the Power of Attorney Category for more information.

3. Statement / Letter of Wishes

Where people can't envisage the dying phase, they may have what they call a statement of wishes. These are broad statements of wishes in terms of what they want to have in the later part of life. One can communicate their goals of care, such as enjoying an improved quality of life, more and earlier hospice care, or care to enable them to remain in their homes, etc. 

Another use for a statement of wishes is to supplement a Will. One may wish to keep the two statements separate and have the statement of wishes relating to the Will kept with the will and remain confidential until death. The contents of a statement of wishes are generally not legally binding.

The following table is a quick reference guide: