FamiLEE saga: Is a grant of probate really final?
by Deanna Nabilah and Sharanya Pillai
IN A recent salvo against the Prime Minister, Mr Lee Hsien Yang insisted that the last Will of the late Mr Lee Kuan Yew is “final and legally-binding”, because it had been granted probate in Oct 6, 2015. Since then the word “probate” has dominated the news, being frequently used by the younger Mr Lee and his sister as a defence of the need to demolish 38 Oxley Road.
But is it impossible to challenge the probate in court? Lawyers TMG spoke to noted that it is possible to mount a challenge, just that there would be significant challenges.
1. What exactly is a grant of probate?
Wills are meant to be relatively straightforward documents, laying out the division of assets of the deceased. But not everything always goes to plan. This is where probate – a court process establishing the validity of a will – comes in handy.
According to lawyer Alyssa Mundo, who focuses on family law at Yeo & Associates, a will may not be fully recognised if it is not properly executed as per the Wills Act – for instance, if “there wasn’t any witness to the will” or the will was not carried out proper. Applying for a grant of probate in such cases would then require the will to be “proved” as valid and accepted as reflective of the deceased’s final wishes.
Corporate litigation lawyer Ronald Wong, from Covenant Chambers, explained that there are two different ways to prove a will in probate applications. The “common form” is a “straightforward application”, while the “solemn form” involves calling on witnesses to testify that the will represents the intentions of the deceased testator, and that the testator had the capacity to make a will.
The latter is an option for Executors of a will who foresee that the validity of the will might be questioned or challenged in future, he noted. If a will is proved by solemn form, this means that it becomes harder to challenge the grant of probate. It is not clear which form of probate was granted for Mr Lee Kuan Yew’s will.
2. Under what circumstances can probate be challenged?
The grant of probate can be revoked or amended if there are “sufficient causes”, according to the Probate and Administrative Act. However, Ms Mundo said that even that would be hard to prove because the “part on ‘sufficient causes’ is not defined in the act [Probate and Administration Act]”. The court also has discretion in such cases.
She added that the courts have, through previous cases, regarded “sufficient causes” as “undue and improper administration in total disregard of the interests of the beneficiaries.” The test is an objective one, which means that the court will evaluate if a reasonable person in the Executor’s position may have acted a certain way.
Some possible grounds for challenging probate include arguing that the will was forged, that the deceased lacked “mental capacity”, or that someone had exercised “undue influence on [the] deceased [such] that he or she was not really operating out of their free will at that time”, Mr Wong noted.
The Wills Act provides a guideline that probate can be challenged up to six months after it is granted. But lawyers interviewed by The Straits Times noted that one can still challenge a probate beyond that time frame, if “special reasons” are provided. (Jun 17) The final decision however, still depends on the discretion of the court.
3. Could conflicts of interest be an issue in this case?
Lawyers TMG spoke to declined to comment on the specifics of the Lee siblings’ dispute. But when asked if getting a relative to draft a will may present a conflict of interest, Mr Wong said that may not necessarily invalidate the will.
“[Beneficiaries] and certain immediate family members of the beneficiaries under the will are not supposed to be witnesses to the will,” he said. “But there is no necessary impairment of the deceased’s intention or will-making power as it were, just because the person drafting the will was a family member of a beneficiary, or there is some so-called potential interest in it.”
“However, a beneficiary or immediate family member of a beneficiary drafting the will may raise suspicious circumstances which make it harder for the party proving the will.”
Ultimately, challenging a probate still “goes back to the question of whether the will reflect the deceased person’s intention, and whether he was under any undue influence, or duress or whatever that impairs that intention”, Mr Wong added.
Much of the Lees’ public spat now centres on who drafted the final will. In his Facebook note, the PM raised suspicions about how the final will was drafted by Stamford Law, as Mrs Lee Suet Fern’s firm was then known. Mr Lee Hsien Yang then shot back neither his wife nor his company were involved in drafting Mr Lee Kuan Yew’s will.
It remains to be seen how this conflict of interest element of the case might play out, as the saga continues to unfold.
Updated June 18: The famiLEE affair has been brewing for a while now. Read our articles on the issue:
FamiLEE saga: 10 things from the academic paper “When I’m dead, demolish it” (Jun 18)
FamiLEE saga: How Lee Suet Fern got LWL her inheritance, according to leaked emails (Jun 15)
FamiLEE saga: Singaporeans react with confusion, humour and CSI skills (Jun 15)
FamiLEE saga: From 38 Oxley Road to 1 Parliament Place, not just a family affair (Jun 15)FamiLEE saga: Headlines around the world (Jun 15)
FamiLEE saga: Now about that mysterious ministerial committee (Jun 15)
Third generation Lee weighs in (Jun 14)“We do not trust Hsien Loong as a brother or as a leader. We have lost confidence in him.” (Jun 14)
Featured image from Google user Nick Youngson. CC BY-SA 3.0
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