Citation(1995) 7 SAcLJ 379
Date01 December 1995
Published date01 December 1995

This article examines the financial position of the deceased’s family after his death and considers whether there is a need to extend the powers of the court under the Inheritance (Family Provision) Act in order to ensure that such family members are adequately provided for.


“The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law”1

The law of testacy allows a person great freedom to dispose of his property in the manner that he desires. It follows that a person may give property away from his family and leave no provision for his spouse and children after his death. In Singapore, the Inheritance (Family Provision) Act2 (hereafter referred to as the IFP A) constitutes an exception to the general principle quoted above. The Act has placed some fetters on the testator’s freedom in order to ensure that the surviving members of his family are reasonably provided for even after his death.

The IFPA permits dependent family members of the deceased to apply to the court for orders for reasonable maintenance to be made to them out of the deceased’s estate. The Act is modeled after the English Inheritance (Family Provision) Act, 19383, which was a modified form of similar statutes adopted earlier in New Zealand4 and in the Australian states5. In April 1976, the English Inheritance (Provision for Family and Dependants) Act 19756 (hereafter referred to as the 1975 Act) came into force and replaced the English Act of 1938. The 1975 Act gave statutory effect to recommendations made in the Law Commission’s Second Report on Family Property: Family Provision on Death7. One of the more significant principles

recommended by the Law Commission was that maintenance should no longer be retained as the objective in determining family provision for a surviving spouse and that the court’s powers should be as wide as its powers to award financial provision on divorce. As a result, the current 1975 Act of England has broadened the powers of the court in ensuring adequate provision for the deceased’s family. It has also extended the scope of persons eligible to apply for provision under the statute. Singapore has not followed suit; the provisions of the IFPA remain similar to that of the old English Act of 1938 as amended by the Intestates’ Estates Act 19528.

This discussion centres on the financial position of the deceased’s family in Singapore after his death and takes a look at whether there is a need to extend the court’s powers in order to ensure that such family members are sufficiently provided for.

1. Intestacy

The Intestate Succession Act9 governs situations where the deceased has not made a will and also applies, where there is a will, to any interest in the deceased’s property which the deceased has failed to deal with in the will.

Section 7 of the Intestate Succession Act provides for the scheme of distribution of the estate. The scheme is briefly set out below:

  1. a. Rule 1: Leaves spouse; no issue, no parent

    If the deceased dies leaving no issue or parent but only a spouse, then the surviving spouse is entitled to the entire estate.

  2. b. Rules 2 & 3: Leaves spouse and issue

    If the deceased dies leaving a spouse and issue, the spouse will be entitled to half the estate and the issue will each share the other half equally. This is the case even if the deceased has surviving parents.

  3. c. Rules 4 & 5: Leaves spouse and parents; no issue

    If the deceased leaves a spouse and parents but has no issue, the spouse will be entitled to half the estate and the parents will be entitled to the other half in equal shares.

  1. d. Rule 6: Leaves siblings and their children; no spouse, issue or parents

    If the deceased dies without leaving any surviving spouse, parents or issue, his brothers and sisters and their children will be entitled to share the estate equally.

  2. e. Rule 7: Leaves grandparents; no spouse, issue, parents or siblings

    If the deceased has no surviving spouse, issue, parents or siblings, his grandparents will be entitled to the estate in equal shares.

  3. f. Rule 8: Leaves uncles and aunts; no spouse, issue, parents, siblings or grandparents

    Where there are no surviving spouse, issue, parents, siblings or grandparents, the uncles and aunts of the deceased will be entitled to the estate in equal portions.

  4. g. Default of rules 1 to 8

    In default of the rules 1 to 8, the Government will be entitled to the estate of the deceased.

On what principles are intestacy laws built? The Law Commission Working Paper on Distribution on Intestacy10 suggests that it is likely that intestacy laws are based on a mixture of principles. They may, first of all, be based on an analysis of provisions that testators normally make in their wills. If this is the case, intestacy rules merely attempt to speculate how the deceased, if he were an average testator, would have wanted his property to be dealt with. Another principle is that intestacy laws should distribute property according to those most likely to need it. Our intestacy provisions give priority to the spouse and children of the deceased; the next in line being parents of the deceased. Perhaps it is assumed that these family members are those most dependent on the deceased and are therefore the most likely to need the property. A third approach is provision according to desert. In other words, certain people are seen as deserving of receiving a share of the deceased’s property. They may be “deserving” because they have contributed indirectly to the acquisition of the property by looking after the welfare of the deceased. Based on this principle, the spouse and perhaps, the parents of the deceased are likely to be most deserving of the deceased’s property. Finally, it is also possible to build intestacy laws on the basis of the status of marriage itself. The marriage relationship is given primacy over blood relationships. On this principle, the spouse’s claim outweighs all other claims.

The Intestate Succession Act may have had all these underlying principles as bases upon which the specific rules have been built. However, since the

rules give fixed shares to the specific recipients, they are at best a generalization of what is fair in the majority of cases. There is no room for variation of the shares and none other than those named in the rules are entitled to the deceased’s property. In order to achieve a fair result in all cases and not just in the majority of the cases, a discretionary system is probably required. For example, the principle that those who most need the property should be entitled to it may have been considered when the intestacy laws were enacted, but where there is no system that requires potential recipients to prove their needs, that principle may not be practically operative in many cases; those who do not need the inheritance may actually be entitled to a substantial share-while those who most need the property may not receive a sufficient share.

A review of the state of the intestacy law in Singapore is not intended in this discussion. The point made here is simply that the intestacy provisions may not always provide adequately for those dependent on the deceased. There must be some discretionary system which can supplement the scheme contained in the Intestate Succession Act. Presently, the IFPA is the closest provision to such a system. Section 3(8) of the IFPA provides that the court “shall not be bound to assume that the law relating to intestacy makes reasonable provision in all cases.” The provisions of the present IFPA and its inadequacies are considered below.

2. Testacy

It has already been pointed out earlier that there is great freedom to deal with one’s property after death. The Wills Act11 governs the making of wills and their effects. The advantages of making a will are easy to perceive. Wills permit the exercise of freedom of choice in dealing with one’s property in any manner one likes, subject only to a few limitations. Further, the administration of the deceased’s estate is more efficiently dealt with where there is a will. The estate vests immediately in the executor and there is no difficulty in ascertaining what each of the beneficiaries under the will should receive.

It is interesting to note that the marriage of the testator who has made a will prior to the marriage will render the will invalid unless it was made in contemplation of the marriage12. Is it implicit in this provision that the law assumes that the manner in which one would have desired to deal with one’s property is changed when one enters into a marriage? Or is the dominant purpose of such a provision to provide for the family of the deceased, albeit in a limited way? Either view demonstrates that the law intervenes in a limited way to give some consideration to the special position of family members. This point reflects the central question in this discussion:

how much should family law intervene with the freedom in testacy law in order to ensure sufficient provision for the family of the deceased?

3. Women’s Charter13 provisions

There is no specific provision in the Women’s Charter providing for the family members of the deceased. However, the powers of the court in making financial provisions and dividing family assets in matrimonial proceedings14 are relevant to this...

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