Doing the Right Thing – A Primer on Statutory Wills in Singapore

Under section 23(1)(k) of the Mental Capacity Act 2008 (MCA), the Court’s powers in respect of the mentally incapacitated person (P)’s property and affairs include “the execution for P of a will”. Such a simple sentence has led to controversy, particularly because of the significant impact of said powers. This article outlines the principles governing statutory wills in Singapore.

Introduction

1. Under the Mental Capacity Act 2008 (the Act), the Courts have wide-ranging powers in respect of a mentally incapacitated person’s property and affairs. One such power is the execution of a will on a mentally incapacitated person’s (P) behalf, as prescribed under section 23(1)(k) of the Act.
2. This is a significant power since a will is “one of the most important legal documents that an individual can execute”.¹As stated by the Court of Appeal in its decision of Low Ah Cheow and others v. Ng Hock Guan (2009) 3 SLR(R) 1079 (CA) at (72) This leads us to a fundamental question – when is it appropriate for a court to exercise this power on P’s behalf? This article seeks to outline the principles on this intriguing intersection of the laws on probate and mental capacity.

When Should the Court Exercise its Powers under Section 23(1)(k)?

3. As a starting point, when a court directs the execution of a statutory will, it is essentially acting on P’s behalf to make his own will.²Rosalind Croucher, “An Interventionist, Paternalistic Jurisdiction? The Place of Statutory Wills in Australian Succession Law”, UNSW Law Journal, Vol 32(3), 2009, 674, 697
4. When enacting section 23(1)(k) of the Mental Capacity Act. Parliament clearly intended that the Court’s power to make statutory wills should be exercised “very, very carefully and very stringently”.³Parliamentary Debates, Official Report (15 September 2008), vol 85 at col 151 (V Balakrishnan, Minister for Community Development, Youth and Sports) This is further evidenced by the fact that the Court’s power under section 23(1)(k) is non-delegable.
5. However, this begs the question of when the Court should exercise its powers under section 23(1)(k) of the MCA. We first look at the Minister’s statement at the second reading of the Mental Capacity Bill.
6. In the relevant parliamentary debates, the Minister raised examples of circumstances that may warrant the execution of a statutory will,⁴Parliamentary Debates, Official Report (15 September 2008), vol 85 at col 113, 151 (V Balakrishnan, Minister for Community Development, Youth and Sports) which can be distilled into two broad categories:

1. If there is a major change in circumstances since P’s execution of his prior will, such that it is impossible or highly impractical to execute certain provisions that were made in P’s will;⁵The Minister raised a few examples in this category. For instance, (1) where the primary beneficiary died before the mentally incapacitated person and the assets could be used for P’s care and upkeep; and (2) the property intended to be gifted in a will no longer exists.
2. Where the distribution of assets in P’s will leads to inappropriate, unfair or unjust outcomes.

7. The first category is uncontroversial as the validity of P’s will is not being disputed. P’s autonomy in making the will is still largely respected save that the circumstances have made it difficult for his or her loved ones to comply fully with its terms. In a sense, the Court’s role is somewhat analogous to the cy-pres doctrine in charitable trusts. The Court simply steps into P’s shoes and objectively give effect to his or her wishes, and in his or her best interests, to amend the will to further P’s intentions when making the will.
8. The second category appears to be more controversial. It is trite that a person’s testamentary freedom allows a testator to make decisions, regardless of how unfair, unreasonable it may appear. However, the Minister’s statement must not be read in isolation and it must be construed with the following factors in mind:

1. First, the MCA’s prevailing purpose is to govern the conferment of legal authority on third parties to manage the affairs of mentally incapacitated persons⁶SGB Starkstrom Pte Ltd v. Commissioner for Labour (2016) 3 SLR 598 at (25). The English courts have held that it has no power under the MCA to make a declaration on the validity of the will. All it has is the power to make a will on behalf of P;⁷Clitheroe v. Bond (2021) EWHC 1102 (Ch) at (61) and
2. Second, the MCA’s focus is about upholding P’s autonomy and that must necessarily include the upholding of his autonomy in distributing the assets as he or she wishes.⁸Such a principle pre-dates the enactment of MCA. See for instance in Re Lee Martin (1995) 1 SLR(R) 897 where Kan Ting Chiu J refused the committee of person’s application under the repealed Mental Disorders and Treatment Act to make an immediate gift to P’s son and daughter. This was P’s will made it clear that he wanted to keep the property for himself while he is alive and thereafter, his wife, two children and daughter-in-law shall have shares in it.

9. It is therefore questionable, to suggest that the MCA was intended to rectify or modify a will just because third parties may subjectively perceive P’s distribution as unfair, unjust and/or irrational.
10. Instead, it is only appropriate for the Court to make a statutory will on P’s behalf when the circumstances strongly suggest that it is in P’s best interests to do so. A typical situation is when P’s autonomy is impaired by way of progressive ailments such as dementia, which results in P’s will being procured by undue influence. There are two local cases which are instructive in this regard.
11. In TCZ v TDA, TDB and TDC [2015] SGFC 63 (TCZ), the mentally incapacitated person was an 88-year-old wealthy widow who was diagnosed with dementia. The widow’s niece sought for an order allowing her to act as her aunt’s deputy. However, it transpired that a lasting power of attorney (LPA) was registered appointing the widow’s friend TDA as a done. Furthermore, a will was executed by P bequeathing all her assets to TDA. The niece applied to revoke her lasting power of attorney, which the court eventually revoked. The niece then applied for an execution of a statutory will on behalf of P. TDA contested the niece’s application and maintained that the original will should not be disturbed.
12. Shobha Nair DJ allowed the niece’s application for the execution of a statutory will because the will that bequeathed all of the widow’s assets to TDA solely was not freely executed. The provisions of the will showed that defendant TDA exercised undue influence over the widow, and the widow was not independently advised. The will was obtained by TDA shutting P out of her familiar world and positioning himself as the only caregiver able to fulfil that role. As such, the Court would allow the execution of a statutory will that restores the widow’s original desires and one that furthers her best interests.
13. Another example is the case of BHR and another v BHS [2013] SGDC 149 (BHR). In that case, Foo Tuat Yien DJ held that it was in the mentally incapacitated person’s best interests that a statutory will be executed such that P’s estate be divided equally among her six children. A major factor in the Court’s reasoning was that a prior will in 2010, which substantially benefited the defendant to the detriment of P’s other children, was executed under clearly suspicious circumstances, and cannot be explained other than the defendant’s undue influence of P.⁹BHR and another v. BHS (2013) SGDC 149 at (63)

The Terms of a Statutory Will

14. In applications involving the execution of a statutory will, the common practice appears to be that an applicant will produce its draft terms before the Court for consideration.
15. As previously stated, the Court in exercising its power under section 23(1)(k) must take into account whether the draft terms of the will to be executed are in P’s best interests (section 3(5), MCA).
16. The Court must also consider P’s past and present wishes, feelings, beliefs and values (section 6(8), MCA). However this is subject to the caveat that the Court will consider the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the Court’s overall assessment in her best interests.¹⁰In Re M (Statutory Will) (2011) 1 WLR 344 at (35)
17. In considering whether the terms of the statutory will are in P’s best interests, an important consideration is how it may affect P would be remembered after his death. As Munby J memorably stated in the English Court of Protection’s decision of Re (M) Statutory Will [2011] 1 WLR 344 (Re M)¹¹Re M (Statutory Will) (2011) 1 WLR at (38), His Lordship was referring to Lewison J’s decision in Re P (Statutory Will) (Ct of Protection) (2010) 2 WLR 253 at (44):“Best interests do not cease at the moment of death. We have an interest in how our bodies are disposed of after death, whether by burial, cremation or donation for medical research. We have, as Lewison J rightly observed, an interest in how we will be remembered, whether on a tombstone or through the medium of a will or in another way. In particular, as he points out, we have an interest in being remembered as having done the “right thing”, either in life or, post mortem, by will.”
18. However, the application of the principle that P should be seen as doing “the right thing” is not always helpful in practice due to its inherent subjectivity. As the Court in RE G(TJ) [2010] EWHC 3005 (Fam) observed, some family members will think that the court had done the right thing and some will think that the court has done the wrong thing.”¹²Re (G) TJ (2010) EWHC 3005 (Fam) per Morgan J, see also Re J (A Protected Party) (2016) EWCOP 52 at (28)
19. The Court’s exercise is not mere guesswork. It considers all the factual circumstances before it. For instance, in Re M, where Munby J held that P’s caregiver should be excluded as a beneficiary of the statutory will, for amongst other reasons, the caregiver was in breach of the Court’s prior order to provide a proper account of how he utilised the significant sum of monies which P transferred to him,¹³In Re M (Statutory Will) (2011) 1 WLR 344 at (52)
20. A particular factor which the Courts have given strong consideration to is P’s expressed views when he or she had mental capacity. Therefore, the Court will not agree to the draft terms of a statutory will, if the terms go against P’s long-held wishes and there is little evidence to suggest that the draft terms would be in P’s best interests. Hence in Re M, Munby J refused to include a legacy for P’s cousin in the statutory will just because he was the only family member that maintained a relationship with P. This was because doing so would contradict P’s long-held views that her cousin should not be included in any of her wills as he did not need the money.¹⁴Re M (Statutory Will) (2011) 1 WLR 344 at (57)
21. In considering P’s past views, the Court will invariably look into P’s prior wills as evidence of these wishes. This is unsurprising as the prior will provides a documentary basis for the Courts to assess how P would have acted in the current circumstances if he or she had mental capacity. For example, In TDA, the Court approved the terms of the draft statutory will that bequeathed P’s assets to various charitable organisations, as this was consistent with the terms of P’s previous wills. That being said, the Court will obviously accord no weight whatsoever to any prior wills which P entered into when he or she lacked mental capacity.¹⁵Re (D) (Statutory Will) (2010) EWHC 2159 Ch (D) at (12),

Concluding Remarks

22. Lyndon B. Johnson once said “Doing the right thing is not the problem. Knowing what the right thing is, that’s the challenge.” That quotation neatly encapsulates the difficult problem that practitioners will face when considering section 23(1)(k) of MCA. It is hoped that this brief article would, in a small way, assist readers in meeting that challenge.

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