Writing a will is vital to ensuring that a person’s property and assets are distributed according to his/her wishes upon death. However, there are times when specific property or assets may be inadvertently left out of one’s will. This may occur, for example, when the person making the will (the “testator”) had not specifically provided for such property in the will, or when such property is not effectively transferred to an intended beneficiary under the will. Such property or assets in the deceased’s estate becomes what is known as “residuary property”.
Other common situations in which residuary property may result include where:
- An intended beneficiary under the will passes away prior to the effective transfer of property to him/her;
- The testator acquires new property after executing the will;
- Property that is specifically bequeathed under the will (such as a house) is sold and converted into monies prior to the testator’s death;
- The distribution of property under the will is contrary to law or invalid for some reason;
- Any other reason causing the failure of transfer of property under the will.
Disputes may then arise as to the manner of distribution of the residuary property, for example, who should inherit the residuary property, and what principles should govern such distribution?
The Singapore Courts have generally adopted a consistent approach to dealing with residuary property. Where the will contains a valid residuary clause, the Court will determine whether the property falls within the scope of the clause. If the answer is yes, the property will be distributed in accordance with the residuary clause (and therefore, the testator’s wishes). Where the will does not contain a residuary clause, the Court will apply the provisions of the Intestate Succession Act (Cap. 146 of Singapore) to determine the manner in which the residuary property should be distributed.
Step 1: The court will determine if there is a valid residuary clause in the will
The residuary clause should name each intended beneficiary/beneficiaries (as the case may be) of the residuary property and state the manner in which the residuary property is to be distributed. Specific instructions could also be imposed, such as, for example, that the residuary property is only to be distributed among the testator’s children 20 years after the death of a spouse.
An example of a common residuary clause in a will is as follows:-
“To hold the rest and residue of my estate upon trust for my wife, [ ], if she shall survive me by a period of thirty days, but if she does not, then for my children, [ ], [ ], and [ ] in equal shares”
The Court may in specific instances, also find that a particular residuary clause is void and/or unenforceable. In doing so, the Court generally takes into account the laws pertaining to succession at the time of the execution of the will.[1] In one such case, the Court determined that a residuary clause which left the residue of a testator’s estate to stand indefinitely as an “ancestral fund” was void. Accordingly, the residuary property was distributed in accordance with the Intestate Succession Act. [2]
Step 2: The court will determine what property falls within the scope of the residuary clause
Where the will contains a residuary clause, the court will then determine what property falls within the scope of the residuary clause, and accordingly uphold the residuary clause in respect of all residuary property falling within the scope of the clause.
A question which may arise for the Court is whether specific property falls within the scope of the residuary estate (and therefore, whether such property is covered by the scope of the residuary clause).
In one case, the testator took out a life insurance policy during his lifetime, naming his wife as the beneficiary of the policy. Although his will contained a residuary clause (leaving all personal property to certain individuals), the Court found that the funds generated from the policy did not belong to the testator at the time of his death. As the proceeds generated from the policy belonged to his wife (the beneficiary of the policy), such proceeds did not form part of the testator’s residuary estate, and the residuary clause could not cover such proceeds.[3]
Step 3: The court will interpret and apply the residuary clause to distribute the residuary property
While applying a residuary clause is typically straightforward, the Court may sometimes be called upon to resolve disputes over its interpretation, particularly in the case of a residuary clause which is ambiguously drafted.
In one case, the residuary clause provided that the testator’s residuary estate was to be divided among the “lawful natural and/or adopted sons” of the testator’s sons. The executor of the testator’s will filed a motion in the High Court in order to determine whether the word “lawful” was used as an (i) alternative to the words “natural and/or adopted” (which would therefore include illegitimate sons) or as a (ii) qualifier to the words “natural and/or adopted” (which would therefore exclude illegitimate sons). The High Court eventually determined that the latter interpretation was the testator’s true intention.[4]
This is but one illustration of the practical complications that could arise from incorporating an ambiguously drafted residuary clause in a will, and underscores the importance of clear and careful drafting in wills.
Step 4: In the absence of a residuary clause, residuary property will be distributed in accordance with the provisions of the Intestate Succession Act
Intestacy is the situation in which a testator dies without a valid will. In the absence of a residuary clause in the will, it is treated as though there was no will made in respect of the residuary property in the testator’s estate (in a situation known as a “partial intestacy”). In such a situation, the provisions of the Intestate Succession Act (Cap. 146 of Singapore) will govern the manner in which the testator’s residuary property will be distributed.
Assuming the testator was domiciled in Singapore at the time of his death, the testator’s residuary property in Singapore, including movable property (e.g. cash, securities etc) and immovable property (houses), will be distributed in accordance with the following Rules[5]:
| Surviving Family of Testator: | In the Absence of: | Distribution: |
| Spouse (i.e. wife or husband) | Children and parents | Spouse: 100% |
| Spouse and children | – | Spouse: 50%
Children: 50% (equally distributed) |
| Children | Spouse | Children: 100% (in equal proportions)
If the testator’s child is deceased, the child’s children (i.e. the testator’s grandchildren) can legally represent his/her parents to claim the corresponding portion of the estate. |
| Parents | Spouse and children | Parents: 100% (equally distributed) |
| Siblings (i.e. brothers and/or sisters) | Spouse, children and parents | Brother(s) and/or sister(s): 100% (equally distributed) |
| Grandparents | Spouse, children, parents, siblings | Grandparents: 100% (equally distributed) |
| Uncles and aunts | Spouse, children, parents, siblings, grandparents | Uncles and aunts: 100% (equally distributed) |
Assuming that none of the above are applicable i.e. where the testator has no surviving family members, all of the residuary estate will pass to the State. The above Rules are not applicable to Muslims in Singapore, whose estates are governed by the specific provisions in the Administration of Muslim Law Act (Cap. 3 of Singapore)[6].
[1] Wong Kai Woon and another v Wong Kong Hom and others [1999] 3 SLR(R) 862
[2] Re Will of Tan Lip Buoy (alias Tan Lip Buay alias Tan Hock San), deceased [1996] 1 SLR(R) 970
[3] Eng Li Cheng Dolly v Lim Yeo Hua [1995] 2 SLR(R) 577.
[4] Wong Kai Woon and another v Wong Kong Hom and others [1991] 1 SLR(R) 51.
[5] Intestate Succession Act (Cap. 146 of Singapore), s. 7.
[6] See: Part VII of the Administration of Muslim Law Act (Cap. 3 of Singapore).
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This article is written by Wong Liang Kok and Linus Lin from Tan Peng Chin LLC and edited by Chrystal Lee from Asian Law Students Association.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.