Willing away flat depends on form of ownership

Source : Sunday Times - 22 Jun 2008

Q MY uncle is over 70 years old and married, but he does not have any children. He would like to include his three-room HDB flat in his will.

He and his wife are the lessees of the flat, which is fully paid for by him. His wife has not contributed any money for the flat.

Can he include the flat in his will? Is it true that in the event of his death, his wife will be the sole beneficiary of the flat? Does he need to have his wife’s consent for the will? And does she need to sign it?

A YOUR uncle is able to make a will on the flat, but whether it can be willed away will depend on two factors.

The first is the manner in which your uncle holds the flat with his wife, that is, whether as joint tenants (the usual manner of holding) or as tenants- in-common in defined shares.

The second is the right of survivorship if the flat is held as joint tenants.

If the flat is held as tenants- in-common in defined shares, your uncle can will his specific share away and, upon his death, the will operates to bequeath his share to his specified beneficiary.

If the flat is held as joint tenants with his wife, then the right of survivorship operates. This means that if your aunt dies before your uncle, the whole flat will belong to him and he can will it away.

If your uncle dies before your aunt, his undivided share in the flat will accrue to your aunt wholly, leaving nothing for his will to operate upon. Therefore, a will in these circumstances will not be useful.

You mentioned that the HDB flat is fully paid for by your uncle. Nonetheless, as long as your aunt’s name is included as joint owner of the flat, she has legal and equitable rights to it.

She may have made indirect contributions to it through her years with the family.

In the event of your uncle’s death, his wife will be the sole beneficiary of the flat, if it is held by both of them as joint tenants.

No, your uncle does not require anybody’s consent to make a will or to agree to its contents. However, if his wife desires to make a will that mirrors your uncle’s will (these are called mutual wills), she will have to make one in her own name and sign it. She is not required to sign your uncle’s will.

Do take note also that no beneficiary should sign as a witness of a will.

Lim Choi Ming
Partner, KhattarWong

Advice provided in this column is not meant as a substitute for comprehensive professional advice.