Distribution of Residuary Estate and Legacies in Alvin's Will

This paper provides answers to questions regarding the distribution of the residuary estate and legacies in Alvin's will. It discusses the distribution of the residuary estate, the type of legacies in clauses 2 and 3, the appropriate type of grant, and the type of legacy in clause 4. The paper also addresses what happens to the legacy while Tania is under 18 years old and if Tania dies before reaching 18.

Running Head: ASSESSMENT 2 1
Assessment 2
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ASSESSMENT 2 2
Introduction
This paper provides brief answers in response to a fact pattern containing the will and last
testament of Alvin. The paper answers four main questions asked.
How the Residuary Estate will be distributed
Residuary estate is dealt with under clause 5 of Alvin Tan’s Will. By virtue of that clause,
the Alvin bequeaths the rest of his estate to his brother, Elvis Tan. According to the facts of the
scenario, Elvis died in 2007 leaving behind Alvin, the testator who died in 2007. Elvis, the
beneficiary of the residual estate, died leaving behind a wife and two children, namely Fin and
Hal aged seven and five, respectively. The issue, therefore, is how the residuary estate will be
distributed in light of the fact that the testator was predeceased.
It is important to consider whether Elvis’ wife and children have a right of benefiting
from the residuary estate. Section 26 of the Wills Act (1838) provides that where an issue dies
during the testator’s lifetime, the bequest will not lapse provided that issue is survived by
children. The intention of this section is that the gift reaches the testator’s grandchildren (Crown,
1992). The question is whether this provision is applicable to a beneficiary who is not a child of
the testator as is the case of Elvis. This question was dealt with by the High Court of Singapore
in the case of Re Will of Loke Soh Lui, Deceased (1997). Chan Seng Onn, JC authoritatively
emphasized that section 26 of the Wills Act is not applicable in instances where the gift is named
to a person who is not a child of the testator. Therefore, section 26 of the Wills Act is not
applicable in Elvis’ case. The gift/residuary estate bequeathed to Elvis will, therefore, lapse and
fall into residue. This is so unless the testator expressly stated to whom the gift will vest in case
the beneficiary predeceases him. However, this is not the case with Alvin’s will. Indeed,

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according to Halsbury Laws of England (1987), intentions unexpressed are irrelevant and courts,
as a general rule will not give effect to such.
How, therefore, will the residuary estate be distributed? The residuary estate will be
declared intestate since the death of Elvis rendered it lapsed and there is no further provision in
the will that envisages Elvis’ death. The residuary estate is rendered intestate and as such, will be
distributed under the rules of intestacy. The residuary estate will be distributed under section 7 of
the Intestate Succession Act (1967). Rule 6 of section 7 provides that where the testator is not
survived by a spouse, descendants or parents, the estate shall be shared in equal portions between
the brothers and sisters and the children of any deceased brothers and sisters. Accordingly, the
residuary estate will be shared in equal portions between Alvin’s brothers and sisters if any. Jim,
David and Elvis are the three named brothers of Alvin. The residuary estate will be shared
equally between these brothers and since Elvis is deceased, his share will devolve to his two
children, fin and Hal. However, since the two children are still minors, the gift will be held in
trust for them until they are of age – 18 years.
The Type of Legacies in Clauses 2 and 3 and whether they will take Effect
Under Clause 2 of the Will, Alvin bequeathed S$5,000 each to his two friends Matthew
Tanner and Ravi Sindar. The clause further adds that the gift will pass to them whether or not
they act as his executors. The gift bequeathed to Matthew and Ravi is a general legacy. It refers
to the kind of gift to be provided out of the testator’s general estate if sufficient assets are left as
opposed to something particular (Wood Estate v. Arlotti-Wood, 2004).
Will the gifts to Matthew and Ravi take effect? In answering this question, two salient
issued stand out: the first issue is whether a gift to executors take effect; and the second issue is

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whether the gifts will pass given that the two executors are deceased. Section 10 of the Wills Act
(1938) provides that a gift to an attesting witness shall be void. This was the holding in the case
of Bravda (1968). There is nothing in the fact scenario that reveals that they were attesting
witnesses. Hence, the gifts are valid. The general rule under probate law is for a beneficiary to
benefit from a legacy in a will, the testator must be survived by the beneficiary (Kimbrough,
1994). In this case, both Matthew and Ravi predeceased Alvin, the testator. Therefore, in the
absence of any provision in the Will as to the destination of the gifts in the event of Matthew’s
and Ravi’s deaths, the gifts bequeathed to them will lapse and form part of the residuary estate.
The estate will, therefore, either be distributed among the residuary legatees or become intestate
property. In the present case, there is a residuary clause. The property will form part of the
residuary estate. It is noteworthy, that Matthew’s wife, Deborah, does not have a legal basis to
claim the bequest since she is precluded by virtue of the provisions of section 26 of the Wills
Act.
Under Clause 3 of the Will, Alvin bequeathed S$10,000 to Simon Temper, his godson to
be paid out of his OCBC Bank. This is a demonstrative legacy, which refers to a legacy of a
specific amount but with reference to a particular payment fund (Williams, 1841). The attribute
that distinguishes demonstrative from general legacy is the reference to a specific fund out of
which payment is made (Re Atkins, 1912).
Will the gift of S$10,000 to Simon Temper out of OCBC Bank take effect? Being a
demonstrative legacy directing a particular amount to be given to an adult out of a particular
fund, the general rule is that it would take effect. However, there is a slight twist in the scenario
in that there is no mention of Alvin having an account with OCBC Bank. Instead, Alvin held
several DSB Bank accounts. Because of this apparent ambiguity in the will, the matter will be

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left to the courts to construe the meaning. In construction of wills, courts are governed by one
general rule – to give effect to the testator’s intention (In re Curtin Deceased, 1991). Guidance in
construction of wills stems from the celebrated case of Howell v Howell (1992). In that case the
court explained that where any ambiguity is apparent from a will, the court should look at the
plain meaning. If ambiguity persists, the court should look at the text in comparison with the
other clauses of the will. If still there is ambiguity, the courts should consider whether
modification is required. In the present scenario, the courts may consider the fact that Alvin
made a specific demonstrative bequest and hence in seeking to give effect to Alvin’s intention,
bequeath the same amount to Simon out of the DSB accounts.
Type of Grant Appropriate and Right Persons to Apply
The scenario reveals that Alvin appointed his two friends Matthew and Ravi as executors
of his estate. However, the executors, according to the fact pattern, died before Alvin.
Furthermore, there is no provision in the will that provides for a replacement of the executors in
the case of Matthew and Ravi’s demise. The issue, therefore, is which type of grant is
appropriate in this scenario and who would be the right persons to apply for it.
To determine the appropriate type of grant relevant to this fact scenario and the right
persons to apply, it is important to mention that the fact pattern relates to testate succession. In
other words, there is a valid will appointing persons to distribute the property among the
beneficiaries named in the will. Before an executor, who is appointed under a will, distributes the
property, he is required to make an application for grant of probate or grant of letters of
administration (Akmal, 2012). The law governing grants is the Probate and Administration Act.
Section 2 of the Probate and Administration Act (1934) defines and distinguished three types of
grant, namely grant of probate, grant of letters of administration and grant of letters of

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administration with will annexed. Letters of administration with will annexed is defined as a
grant that authorizes the persons named in it to distribute the estate according to the will and the
law. Since the persons rightfully appointed by the will to administer the estate are dead, the
appropriate grant would be the grant of letters of administration with will annexed. This is the
kind of grant that is applicable in the instance where there is a valid will but no executors capable
of administering the estate (Akmal, 2012).
Section 13 (1) (c) of the Probate and Administration Act (1934) provides that where the
testator is not survived by any executor, the court shall grant the letters of administration to the
person deemed fittest. Section 13 (2) provides for a list of persons who shall have a prior right of
grant – a residuary legatee, a legal personal representative or a beneficiary under the will that
would otherwise be entitled to take out a grant had the deceased died intestate. In this case, Alvin
was not survived by children and the residuary legatee predeceased him. The only persons
available to apply for letters of administration with will annexed are his two surviving brothers
Jim and David.
Type of Legacy in Clause 4 of the Will to Tania
Under clause 4 of Alvin’s will, it is stated that S$5,000 be given to Tania Temper her
goddaughter “provided she reaches the age of 18”. This is a general legacy and is categorized as
such because it makes no specific mention of the funds from which the S$5,000 should be drawn
from. Specifically, the legacy is a contingent pecuniary legacy (Re Raine, 1929).
It is important, however to draw a distinction between a vested and a contingent interest.
The distinction between contingent and vested legacies is very slim and must be made with
trepidation and fear (Butler, 1939). It is trite law, that a minor is not legally capable of giving

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valid receipt of either a residue share or legacy. Therefore, a gift bequeathed to a minor will
probably be creating a vested interest as opposed to contingent interest since it suggests that the
legacy belongs to the minor but is not payable until the age of majority is attained by the minor.
In the present scenario, it may be deduced that the intention of the testator was to vest the
S$5,000 in Tamia but this was not possible since she was a minor. However, a legacy is
contingent where a pre-condition is attached to it. In this case, the condition for the money to
become payable is the attainment of the age of 18. Therefore, it may be said that whatever the
language used by a testator, as long as a condition is attached to the legacy, it is a contingent
legacy. Furthermore, the wording used in the will is “provided she reaches” and not “on
attaining”. The latter suggests that the gift is vested while the latter suggests that the gift is
contingent. Therefore, the type of legacy bequeathed to Tania under clause 4 of the will is a
contingent pecuniary legacy.
What Happens to the Legacy While Tania is under 18 Years Old?
As long as Tania is below the age of 18, she cannot inherit or claim the legacy since it is
a contingent pecuniary legacy. In the case of Re Raine (1929), the court held that on a contingent
pecuniary legacy, income was unpayable unless the will contained a contrary provision. Tania’s
legacy will, therefore, fall into residue until it becomes due.
What Happens to the Legacy if Tania Dies Before she is under 18 Years Old?
In the unfortunate event of Tania dying before she attains the age of 18, the legacy will
lapse and devolve back to the residuary estate.

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References
Books
Halsbury, H. S. G. (1987). Halsbury's laws of England (Vol. 50, No. 2). Butterworths.
Williams, E. V. (1841). The law of executors and administrators. (13th ed, Vol. 2).
Journal Articles
Butler, E. B. (1939). Vested or Contingent Remainders the Perennial Enigma. Fordham L.
Rev., 8, 166.
Crown, B. (1992). Wills (Amendment) Act 1992. Singapore Journal of Legal Studies, 513-518.
Retrieved from http://www.jstor.org/stable/24866189
Kimbrough, E. T. (1994). Lapsing of Testamentary Gifts, Antilapse Statutes, and the Expansion
of Uniform Probate Code Antilapse Protection. Wm. & Mary L. Rev., 36, 269.
Internet Sources
Akmal, H. H. (May, 2012). Law: An Asian Identity? 9th Asian Law Institute Conference.
Retrieved from http://irep.iium.edu.my/28151/2/akmal2.pdf
Cases
Celantano Estate v Ross (2014) BCSC 27
Howell v. Howell [1992] 1 I.R. 290
In re Curtin Deceased [1991] 2 I.R. 562

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In the Estate of Bravda (1968) 1 WLR 479.
Re Atkins, [1912] O.J. No. 363
Re Raine [1929] 1 Ch 716
Re Will of Loke Soh Lui, Deceased [1997] SGHC 346.
Wood Estate v. Arlotti-Wood (2004) BCCA 556 at para. 11.
Statutes
Intestate Succession Act. (1967). Section 7. Chapter 146 Laws of Singapore. Retrieved from
https://sso.agc.gov.sg/Act/ISA1967#pr7-
Probate and Administration Act. (1934). Section 13 (1) (c). Chapter 251 Laws of Singapore.
Retrieved from https://sso.agc.gov.sg/Act/PAA1934#pr13-
Probate and Administration Act. (1934). Section 2. Chapter 251 Laws of Singapore. Retrieved
from https://sso.agc.gov.sg/Act/PAA1934#pr2-
Wills Act. (1838). Section 10. Chapter 352 Laws of Singapore. Retrieved from
https://sso.agc.gov.sg/Act/WA1838#pr10-
Wills Act. (1838). Section 26. Chapter 352 Laws of Singapore. Retrieved from
https://sso.agc.gov.sg/Act/WA1838#pr26-