Wills are widely recognised as tools of estate planning or as a clear statement from the testator on how his/her assets should be divided after death. They are arguably even more important in cases involving cohabiting partners and illegitimate children. This article seeks to discuss and navigate issues arising from such situations.
Much has been espoused on the importance of wills, be it as a tool of estate planning or as a clear statement from the testator on how his/her assets should be divided after death. The central tenet of this article is that wills are arguably even more important in cases involving cohabiting partners who have minor children together (who are thus illegitimate children), since the probate application process gets much more complicated without a will.
As a matter of statistics, out of 41,251 births in Singapore in 2016, 843 births were either single parent registration births by citizen mothers or births by citizen mothers who were not married to the father named in the child’s birth certificate at the point of birth registration: “Statistics On Single Parent Registration Births By Citizen Mothers” published by the Ministry of Social and Family Development on 5 February 2018, read with the Report on Registration of Births and Deaths 2020 issued by the Registry of Births and Deaths dated June 2021. This meant that 2.04% of the children born to citizen mothers in 2016 were considered illegitimate at the point of birth; however, the statistics of illegitimate children in Singapore at any point in time is unknown, as children born illegitimate can be legitimated by marriage under section 3 of the Legitimacy Act 1934, or be adopted pursuant to the Adoption Act 1939.
In that context, this article will discuss briefly (a) the law of intestate succession in cohabitation situations; (b) the law concerning grants to guardians which are limited until the beneficiary child attains the age of 21 years; and (c) the extent of the Court’s jurisdiction to issue guardianship orders to aid in probate applications, especially when it involves international families.
Singapore Law of Intestate Succession in Cohabiting Situations
Under Singapore law, if an unmarried person dies intestate without a spouse but with legitimate children, the assets of the unmarried person shall be divided equally between his/her legitimate children: Rule 3 of section 7 of the Intestate Succession Act 1967.
In cohabitation cases, the default position is thus that illegitimate children are not entitled to inherit in respect of their parents’ estates. While the High Court and the Court of Appeal have called upon Parliament to consider if changes should be made in respect of the distinction between legitimate and illegitimate children (see the decisions of AAG v Estate of AAH, deceased [2009] 2 SLR(R) 1087; [2009] SGHC 33 at [5] and AAG v Estate of AAH, deceased [2010] 1 SLR 769; [2009] SGCA 56 at [41]-[43], which decided that under the current law, illegitimate children are not entitled claim maintenance from their deceased parent’s estate under the Inheritance (Family Provision) Act 1966), the abovementioned position remains. While the Law Reform Committee of the Singapore Academy of Law had set up a sub-committee to review the law in this area (see Leong Wai Kum, “The Next Fifty Years of the Women’s Charter – Ripples of Change” [2011] SJLS 152 at 163), it appears that no reports have been published by the said sub-committee.
The only exception to the abovementioned rule involving illegitimate children is that an illegitimate child is able to inherit in respect of his/her mother’s estate under intestacy laws, but only if his/her mother does not have any legitimate children: section 10(1) of the Legitimacy Act 1934 (the LA). If the mother has legitimate children, section 10(1) of LA has no application. Hence, in cases where cohabiting couples bring in children from previous marriages and have children together out of wedlock, it is imperative that a will be executed to ensure that all children, legitimate or otherwise, are able to inherit. In the same vein, section 10(2) of LA also provides that if an illegitimate child passes away, his/her mother is able to inherit property belonging to the said child as though he / she was legitimate and the mother was the only surviving parent.
It is of note that there is no reference in the LA to the Intestate Succession Act 1967 (ISA) (nor vice versa), even though the provisions of the LA and the ISA are in fact at odds with each other. It seems to be taken for granted that the LA would take precedence over the ISA (and certainly there has been no reported case where this has been determined by any Singapore court). However, it is pertinent to highlight section 4(2) of the ISA, which states as follows: “(2) The distribution of the immovable property of a person deceased shall be regulated by this Act [i.e., the ISA] wherever he may have been domiciled at the time of his death”. A strict reading of Section 4(2) of the ISA will lead to the conclusion that the ISA takes precedence over the LA, which means that Section 10(1) of the LA is otiose.
While the rest of the article will proceed on the basis that section 10(1) of the LA will take precedence, it is hoped that Parliament may see it fit to make the necessary amendments to the LA and ISA to harmonise the provisions of the two statutes.
In cases where an illegitimate child’s natural mother passes away without any legitimate children, the illegitimate child (who is thus entitled to inherit) has priority over the cohabiting partner in obtaining the requisite letters of administration. Halsbury’s Laws of Singapore vol 15 at [190.010] states: “In the event of intestacy, the court has a discretion to appoint whoever it thinks ought to be granted the letters of administration. Such a grant may be made to any member of the classes of beneficiaries under the Intestate Succession Act. The Act sets out seven classes of persons who, in descending order of priority, are entitled to apply for a grant. They are: (1) the spouse; (2) the children of the deceased; (3) the parents; (4) brothers and sisters; (5) nephews and nieces; (6) grandparents; and (7) uncles and aunts. Though any of these persons may apply for a grant, it is those who rank in priority who are given first preference, though the court still has a discretion as to whether to appoint such a person. This ranking of priorities is by implication” (emphasis added).
Leaving aside any unfairness arising from the surviving cohabiting partner’s and/or the illegitimate children’s lack of entitlement in intestacy situations, the position in law and process is relatively straightforward. However, this situation gets much more complicated if (a) the children are infants (i.e., under the age of 21) and (b) there is a cross-jurisdictional elements, which may be the case for international families.
Grants to Guardians
In cases where a grant of letters of administration should be issued to an infant but for his/her infancy, the law provides that such grants (on a limited basis, until the infant attains the age of 21 years) should instead be issued to certain persons. Rule 229(1) of the Family Justice Rules 2014 (the FJR) states as follows: “Where the person to whom a grant would otherwise be made is an infant, administration for his use and benefit until he attains the age of 21 years shall, subject to paragraphs (3), (4) and (6), be granted — (a) to both parents of the infant jointly or to the statutory or testamentary guardian of the infant or to any guardian appointed by a court of competent jurisdiction; or (b) if there is no such guardian able and willing to act and the infant has attained the age of 16 years — (i) to any next‑of‑kin nominated by the infant; or (ii) where the infant is a married woman, to any such next‑of‑kin or to her husband if nominated by her” (emphasis added).
In cases where an illegitimate infant’s natural mother passes away without any legitimate children, a limited grant can only be issued to two classes of persons, i.e., the “statutory guardian” of the illegitimate infant, or “any guardian appointed by a court of competent jurisdiction”.
It is of importance that the term “statutory guardian” is defined under Rule 206(1) of the FJR as “a guardian of an infant appointed by the Court under section 5, 6 or 8 of the Guardianship of Infants Act (Cap. 122) or a person granted custody, care and control of an infant under Part III of the Administration of Muslim Law Act (Cap. 3) or Part X, Chapter 5 of the Women’s Charter (Cap. 353)” (emphasis added). Hence, the surviving parent is not automatically allowed to obtain a limited grant for the benefit of his/her infant child by virtue of the provisions under sections 6(1) or 6(2) of the Guardianship of Infants Act 1934 (GIA) – he/she is required to apply to court to obtain a court order appointing him as the infant’s guardian, before he/she is able to apply for the requisite limited grant. This appears to be a control put in place to ensure that there is court oversight over the suitability of the surviving parent to obtain a limited grant for the benefit of his/her infant child.
Further, pursuant to section 6(2) of the Probate and Administration Act 1934 (PAA), “[l]etters of administration shall, if there is a minority or if a life interest arises under the will, be granted either to a trust corporation, with or without an individual, or to not less than 2 individuals”. Hence, even if the surviving parent obtains the necessary guardianship order and clears the relevant threshold under Rule 229(1) of the FJR, the cooperation of a co-administrator is still required – recourse will perhaps have to be sought from the deceased partner’s parents or other family members.
The Extent of the Court’s Jurisdiction to Issue Guardianship Orders to Aid in Probate Application
The requirements of Rule 229(1) of the FJR and the need for a guardianship order were considered in the case of In the matter of B (child of TII) [2015] SGFC 151 (Re B). The applicant is the mother of the child in question, and the father was deceased. The mother filed an application under section 6 of the GIA for an order that she be appointed as the statutory guardian for the child or, in the alternative, that she be granted the right to apply for letters of administration on behalf of the child. It was clear to the Court that the purpose of the application was to satisfy the requirements under Rule 229(1) of the FJR in respect of the father’s estate. There was an added complexity in that case, i.e., that all parties concerned, including the child, have no connection to Singapore.
In dismissing the application, the Court made the following observations. First, it is a general rule that the Court will not make an order in respect of a child who is out of the jurisdiction of the court unless there are special or exceptional circumstances (Re B at [17]). Second, such special or exceptional circumstances may be met in the case where parties have a substantial connection to Singapore (Re B at [19], citing the case of Sim Hong Boon v Sim Lois Joan [1971-1973] SLR(R) 597, where the Court of Appeal made a custody order even though the child was out of jurisdiction, since the father of the child was a Singapore citizen, the child’s parents had set up their matrimonial home in Singapore and the child had lived in Singapore). Third, the Court should not be making a guardianship order simply to allow or facilitate the mother’s application for grant of letters of administration in the father’s estate, since to do so would undermine the guiding principle of the welfare of the child (Re B at [22]-[24]). Fourth, the relevant guardianship order does not have to originate from the Singapore court and may be from a jurisdiction which is more connected to the child (Re B at [24]). The third and fourth observations warrant a closer review.
With respect, it is difficult to understand how (as a rule of general application, or even on the facts of Re B) allowing or facilitating the mother’s application for grant of letters of administration in the father’s estate would undermine the guiding principle of the welfare of the child. It was not disputed that the child in Re B was a beneficiary to the father’s estate – the mother’s intended action of applying for a limited grant in respect of the father’s estate would allow that estate to be administered sooner rather than later, which would benefit the child. The alternative would be to allow the estate to lay in waste until the child turns 21 years old – if the estate had any depreciating assets or ongoing obligations, the value of the estate and the child’s share of the estate would be diminished and significantly so if the child is very young. It appears, however, from the grounds of decision that no arguments were made as to how the mother’s proposed course of action was in the child’s best interests.
In the same vein, it is not wholly inconceivable that an application for letters of administration in Singapore may be made by applicants or for the benefit of children that have no connections and have never lived in Singapore. Foreigners are allowed to hold assets in Singapore. In such a situation, the surviving parent may have to assist his/her child to apply for letters of administration in Singapore to gain access to the deceased parent’s assets in Singapore. In this regard, it is highlighted that if a grant of probate or letters of administration is sought for a deceased who was not domiciled in Singapore, an affidavit of foreign law will be required, which will engender the involvement of expert foreign lawyers (see Rule 218 of the Family Justice Rules and paragraph 65 of the Family Justice Courts Practice Directions).
Further, while it is correct that Rule 229(1) of the FJR does not require the guardianship order to originate from the Singapore court, the surviving parent may face difficulties in obtaining such orders from a foreign court that may be less sympathetic of the requirements under Singapore law, or the need to make a confirmatory judgment that the surviving parent is the guardian for the child. Indeed, it is noted that in Re B itself, “the mother’s Counsel had requested for a further adjournment on the basis that his client i.e. the mother would be seeking legal advice as to whether the Taiwanese court will be able to make an order for guardianship of the child” (at [25]). The Court was unsympathetic to the request since, in the Court’s view, it should not be granting such an order in a situation where neither mother nor child were in Singapore or had a connection to Singapore (at [25]).
In that regard, I have had the opportunity to work with French counsel on a case involving the application for letters of administration for a French woman who passed away leaving behind minor children. The advice from French counsel was that under French law, (a) the surviving parent is automatically entitled to exercise parental authority alone (pursuant to Articles 372 and 373-1 of the French Civil Code) and (b) the role of the Court is not to confirm the law but to apply it to settle legal disputes (pursuant to Articles 30 and 31 of the French Civil Code). Hence, a confirmatory judgment from the French courts would not be forthcoming, and recourse will thus have to be had to the Singapore court. Fortunately, the Singapore court was willing to and did issue a guardianship order in favour of the surviving parent (also French), and the application for a limited grant of letters of administration could proceed.
Concluding Remarks
While the legal requirements to apply for a limited grant of letters of administration in cases involving cohabiting partners and illegitimate children are not insurmountable, the process can be simplified greatly with a will. With a will, parties can make the necessary arrangements to ensure that the probate process is proceeded without undue delay or costs, such as appointing executors, appointing testamentary guardians, making provisions for the cohabiting partner and/or children to have a share of the Estate’s assets, providing for how the assets should be dealt with during the beneficiaries’ minorities, and stating when the assets are to be transferred to the beneficiaries.
The advice to cohabiting partners may similarly be applicable to divorced families. If one party of a divorced couple passes away intestate leaving behind minor children (who thus become the sole beneficiaries of the deceased parent’s estate), the surviving parent may apply to Court for a guardianship order for the purposes of applying a limited grant under Rule 229(1) of the FJR as well. In such a situation, it may be difficult to argue that the surviving parent is unsuitable and should not be granted a guardianship order (to take care of the children or for the specific purpose of administering the assets of the deceased ex-spouse). There may be situations where ex-spouses are comfortable for their ex-spouse to administer his/her assets after death, but this may (not unsurprisingly) be the exception rather than the norm.
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