The idea of having such exclusion clauses in wills was put to a test recently when the High Court looked at the will of a man who specifically excluded his wife from his inheritance.
This was an unusual case involving a sham marriage because the man married the Chinese national out of sympathy so she could remain here as a “study mama” to take care of her school-going daughter.
In his will, the man, who left his three-room HDB flat to his half-sister, wrote: “I DO NOT wish to give any of my property or personal properties to my wife.”
The court implicitly recognised this term because it left the widow with only one option – challenging the validity of the entire will by alleging that her late husband did not have the requisite mental soundness when he signed it.
As she failed to prove that her late husband did not know what he was doing, she could not stake her claim on his flat.
While it is common to disinherit certain family members in wills, this is usually done by naming the deserving beneficiaries only.
For instance, a man recently disinherited his only son when he left his house to a specific charity. The son sought to challenge the will by saying that the donation was void because a charity with that name no longer existed.
But the High Court upheld the donation to the charity, which has a new name because it is the successor to the previous charity and its funds are used for the same charitable purposes.
Exclusion clause may prevent disputes
Everyone should take the writing of their wills seriously if they want to see their hard-earned wealth going to the deserving beneficiaries.
This is especially relevant because many people have muddled their legacy planning by having relatives named as joint owners of their properties when they have no intention of giving those properties to them.
But if such intention is made clear in the will, such as by stating that “the property will go to beneficiary A and not the joint owner B”, the latter may have a hard time staking his or her claim on it.
In his research, Professor Tang Hang Wu found that many families here fought over properties due to the absence of clear intention on who should be the rightful owners.
The legal expert from the Yong Pung How School of Law noted that if the original owners made it clear there was no intention to give the properties to the joint owners, such owners can claim their rightful shares only if they can prove they had also contributed to the purchase of the property.
Of course, you cannot give away assets that are not yours to other people.
For instance, if a couple jointly own a property, either one cannot deprive the other of the rightful share by giving away the whole property to, say, a sibling.
If such a dispute ends up in court, one possible outcome would be to have the property sold to split the proceeds equally between the surviving owner and the new beneficiary.
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What you can do
1. Exclude troublemakers in your family. You can make their scheming much harder by writing this in your will: “I declare that I have considered A, B and C and have decided not to give them anything.” The only way A, B and C can have the slightest chance of winning is to prove that you were not mentally sound when signing the will.
2. Have two wills in one. Many couples have simple wills that designate each other as the beneficiary. But such wills become void if the sole beneficiaries die first. This can be avoided if you have a contingency term in your will that names another set of beneficiaries should your spouse die before you.
3. Disinherit beneficiaries who contest the will. Some top legacy lawyers here help their wealthy clients to write special clauses in their wills, stating that if any of the beneficiaries were to contest the will, they would receive nothing.
While the courts here have yet to rule on wills with the “anti-lawsuit” clause, it would be interesting to see whether anyone would be brave enough to gamble with their inheritance, just to get a bigger share.
Check out Invest editor Tan Ooi Boon’s new book – Retire With More Money – at stbooks.sg
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