When it comes to managing one’s personal affairs, it would be prudent to ensure that a Will and a Lasting Power of Attorney (“LPA”) are completed ahead of time.
In this article, we will address the importance of making a Will and an LPA, as well as help to demystify the legal jargon associated with these key documents.
What is a Will?
In the absence of a Will, a person’s estate (such as assets, liabilities and property) upon their passing will be distributed in accordance with the Intestate Succession Act 1967 (“ISA”).
The ISA provides strict rules on how the deceased’s estate should be distributed and to whom. As such, if one has specific wishes on how their estate is to be distributed after their passing, it is necessary to make a Will.
A person who makes a Will is referred to as the “Testator”. As part of the
Will, the following must be specified:
- The executor of the Testator’s estate
- The executor is the person responsible for administering the Testator’s estate.
- The executor will have to ensure that the Testator’s estate is distributed in accordance with the terms of the Will.
- The beneficiaries of the Testator’s estate
- The persons who will inherit or benefit from the Testator’s estate are known as beneficiaries.
- In the Will, the Testator will have to set out which assets, or classes of assets, are to be distributed to a particular beneficiary.
What is an LPA?
In the event that one loses mental capacity in the future, their loved ones would have to apply for an order under the Mental Capacity Act (“MCA”) to be appointed as the person’s “Deputy”. Being a Deputy empowers the same appointed person to make decisions on behalf of the Party who has lost mental capacity.
Making an application under the MCA is, however, a long and costly process. To avoid such hassle, one is advised to make an LPA earlier on, while they still have mental capacity.
- An LPA is a legal document that allows the person (referred to as the “donor”) to appoint one or more persons (referred to as “donee(s)”) to act and make decisions on their behalf, should they lose their mental capacity.
- These decisions pertain to the donor’s personal welfare, property and affairs.
- There are two LPA Forms that can be executed:
- Form 1 allows the donor to grant general powers to the donees, with the options of selecting basic conditions or restrictions to these powers.
- Form 2 is more specific and allows the donor to stipulate their exact wishes on the specific powers that their donees have.
Engaging a Lawyer for Wills and LPAs
In the case of a Will, especially for a complex one, the expertise of a lawyer is necessary to ensure that the terms therein are not ambiguous. Proper drafting by an experienced lawyer is required in order to make sure that the Will remains valid upon the Testator’s passing.
Similarly, when it comes to executing a Form 2 LPA, a lawyer’s experience and skillset are necessary to ensure that the specific powers accorded to the donees will be valid and in accordance with the donor’s wishes. For this reason, it is a requirement that an LPA in Form 2 is drafted by a lawyer.
Given how important Wills and LPAs are in managing your personal affairs, it is highly recommended and even necessary (in the case of a Form 2 LPA) for one to engage a lawyer.
Engaging a Non-Legal Professional
Non-lawyers also offer services for drafting Wills and LPAs. This is usually done by organisations such as NTUC, insurance companies, or even banks.
For the Will to be valid, it must satisfy the following criteria:
- It must be in writing.
- The Testator must be at least 21 years of age.
- The bottom of the Will should include the Testator’s signature.
- The Testator’s signature must be witnessed by at least two individuals who are neither beneficiaries of your Will nor spouses of beneficiaries, and these witnesses must sign the Will in front of you.
An optional yet recommended step to follow up on is to submit the whereabouts of your Will to the official Will Registry, as well as informing your executors about this.
