Category: Our Insights

A divorce can have a lasting impact on a child’s life. During a divorce, a child may observe that his parents have gone from best friends to enemies that may no longer be on speaking terms. He may have to grapple with the breakdown of his family unit, and have to accept that spending time with both parents means shuttling between homes. Some children may witness constant fighting, and have also been used by their parents as messengers or pawns in the divorce battle. Needless to say, the way a divorce is handled can have different effects on a child.

Statistics show that more than 50 per cent. of young offenders or uncontrollable youths in Singapore come from families with separated or divorced parents.¹

It is always helpful if a divorce takes place in as gentle a way as possible for the children involved, as how parents behave in such an exceptional situation will shape their children’s lives and how their children view relationships and marriage in future. In order to explore and work out a divorce process that is as easy as possible for their children and to minimise the adverse impact on their children, it is best for parents to put the children’s best interests above their own during the divorce.

We have set out below some practical suggestions for parents going through a divorce in Singapore.

1.  Understand divorce proceedings in Singapore and the key rules under the Women’s Charter

A divorce is essentially a dissolution (i.e termination) of the parties’ marital relationship. In Singapore, the law on divorce is found in the Women’s Charter. Save for exceptional circumstances, one’s marriage must have lasted at least 3 years before one is eligible for a divorce. In addition, either parent must be domiciled in Singapore at the time of commencement of the divorce proceedings or habitually resident in Singapore for at least 3 years before the commencement of the divorce proceedings.

A divorce can either be uncontested or contested. If parties agree that the marriage has broken down, and agree to the grounds for which the marriage has broken down, the divorce is uncontested. If not, the divorce is contested and a trial will be required at the Family Justice Courts to decide these issues.

Secondly, parties will have to agree on ancillary issues which are issues relating to the custody, care and control of, and access to, children, the division of matrimonial assets and the maintenance of the wife and children. Again, if these are not agreed, the Family Justice Courts will need to intervene and hearings will be required to decide these issues.

If any of the issues in the process is not agreed between divorcing parents with children under the age of 21, it is compulsory for the parents to attend a mandatory parenting programme mandated by the Ministry of Social and Family Development (the “Mandatory Parenting Programme”). The Mandatory Parenting Programme is a two-hour counselling session that aims to help parents to make better informed decisions in the divorce process which would focus on their children’s needs and interests.

2.  Have the correct attitude towards the divorce

It is important to begin the process of divorce with an appropriate mind-set. In our experience, couples going through a divorce are usually consumed with heartache and hurt. This can drive them to behave in an extremely acrimonious and conflict-driven manner. As a result, we have found that many of our clients have chosen to contest divorces in situations where, had they been able to set aside their emotions, they would not have contested.

In the process of advising such clients, we often talk through their motivations for contesting the divorce. Most are emotional reasons – dragging out the court proceedings in the hope that their spouse would have a change of heart, feeling bitter that their spouse has filed for the divorce first, or disagreeing on whose unreasonable behaviour it was that caused the breakdown in the marriage.

We have mentioned above that, if parties are not able to agree that a marriage has broken down, or on the grounds of marriage, then the Family Justice Courts would need to step in. This means that parties will have to undergo a trial, including a cross-examination of each party, to let the Family Justice Courts decide whether the marriage has indeed broken down, and the reasons why. This drags out the process and results in more time and legal costs. On the contrary, if parties can agree to the grounds of the divorce, this would save time and legal costs as a trial to determine these issues would not be necessary.

In Singapore, divorces are generally granted on a “no-fault” basis. This means that the Court will generally not take into account the reasons for the breakdown of marriage when deciding on ancillary matters, for example, in the division of matrimonial assets or when deciding on maintenance. Therefore, contesting the grounds of divorce to establish fault on the part of a spouse will not do much to help a party’s position when it comes to the ancillary matters.

It is rare for the Family Justice Courts to force parties to stay in a marriage when one has chosen to end it. Choosing to contest a divorce when you know that the marriage is over will only lead to protracting the legal proceedings, and increasing the pain inflicted on your family, including your children who will be caught in the middle.

3.  Seek proper legal representation – A lawyer cannot act for both husband and wife

To have a comprehensive understanding of your rights as parents, it is vital to seek full and proper legal advice.

Even if you and your spouse have decided to resolve the divorce amicably and to reach an agreement, it is still important for you to know your rights, and whether certain proposed access and/or maintenance terms are fair and reasonable. You should seek independent legal advice if you have any concerns with the proposed agreement.

While we would not suggest that one should drag out divorce proceedings unnecessarily, we would also caution against rushing into signing an agreement that has been prepared by your spouse’s lawyers especially if you have not been independently advised by a lawyer. In particular, do note that it is against legal professional rules for a lawyer to advise both husband and wife in matrimonial proceedings as this constitutes a conflict of interests.

Questions we typically receive from our matrimonial clients include:

• What constitutes matrimonial assets that will be distributed?
• What is a fair division of the matrimonial home and the assets especially if parties’ contributions are not equal?
• Where should the child live after the divorce, and who pays for the child’s living and schooling expenses?
• Can grandparents continue to take care of the child during the divorce?
• What access arrangements would be more beneficial to the child?
• If there is a third party in the picture, how do I ensure that my child is not affected by the presence of the third party?
• If my spouse is a foreigner, how do I ensure that my spouse does not take my child away?
• I am a foreigner and have a dependent pass. How do I ensure that my spouse does not cancel my dependent pass?
• My spouse is verbally abusive to me in the presence of the child. How do I protect myself?

Each of the questions above can garner different answers, and each answer will have a direct impact on your child.

The facts of every case are different, which is why it is important for you to seek proper independent legal advice tailored to your circumstances, especially if you have found yourself asking one or more of these questions.

4.  Both parents should continue to have a presence in the child’s life

Research has shown that children have basic needs for healthy growth and development, and their parents will play a significant part in their development. However, time spent with a child is often limited for parents who are separated.

A parent’s access to a child is often limited as a result of divorce. Sometimes, this is due to one party deliberately attempting to limit the other party’s access to the child. Therefore, as parents, it is important when dealing with issues like access to a child, to look at such issues from the perspective of their children and recognise that children need both parents. With this in mind, perhaps parental conflict can be reduced and children can benefit as best as they can from a mutually agreed care and access arrangement.

To ensure that a child gets the best from both parents, the Family Justice Courts are empowered to make a broad range of access orders such as supervised access (where another party needs to be around), reasonable access or liberal access (i.e. no restrictions). As mentioned above, each case is different. You should seek valuable tailored advice on how custody, care and control and access would work in your specific situation.

5.  Divorce during a pandemic

We are living in unprecedented times, and have found that separated parents have had to make do with last minute changes to access arrangements. Parents should try to be a team in this situation, even if it is difficult. A divorce is already hard enough, let alone a divorce in the midst of a pandemic. Amidst all the fear and confusion surrounding the coronavirus pandemic, children are looking to their parents for support and reassurance.

For instance, if a party has moved out of the matrimonial home pending the conclusion of the divorce proceedings, there may be concerns with the child travelling between different households, especially during the Government’s Circuit Breaker.

We would suggest that this not be seen as an opportunity to deprive your child of speaking to or meeting your former spouse. Parents must learn to place the welfare and needs of their children before their own, and that means working well with the other party to make access arrangements that would give their child the greatest assurance of stability.

The learned Registrar Kenneth Yap of the Family Justices Courts has emphasised that parents should work jointly towards devising practical solutions for access and other child-related issues with the children’s best interests in mind, and should comply with all the Government’s Circuit Breaker measures. Talk through concerns with your spouse, and be open to new arrangements. Consider if other non-physical contact with the child could be implemented during this period, for example, pre-agreed and regular timings for telephone or video calls with the child so that the other parent continues to have contact (albeit remote) with the child. If you do not live with your child, accept that, sometimes, not physically meeting your child during this period may be a beneficial arrangement for the health and wellbeing of your child. We would also suggest that both parents take into account each other’s views and suggestions as to any proposals on parenting and home learning.

Custody and access arrangements that parents make in the next couple of weeks have an impact on the immediate safety and welfare of their children and families. In addition, the behaviour of parties during this period may also have a bearing on future custody and access arrangements. In general, the Family Justice Courts are usually more supportive of a parent who has endeavoured to make arrangements where the children’s interests and welfare are prioritised.

At Jacque Law LLC, we have many years of experience handling a wide range of matrimonial matters (including contested and uncontested divorces), and are therefore well-equipped to provide the appropriate advice to our clients. With adequate support and guidance, divorce proceedings do not have to be painful, and can often bring about peace, closure and positive change.

What is an LPA?

A Lasting Power of Attorney (“LPA”) is a legal instrument which allows a person who is at least 21 years of age (the “Donor”) to voluntarily appoint one or more persons (the “Donee(s)”) to make decisions and act on his/her behalf should he/she lose mental capacity one day.

Types of decisions that a Donee can make

A Donee can be appointed to make decisions for the Donor under two general categories, namely “Personal Welfare” and “Property and Affairs”. It is only when a Donor loses mental capacity that the Donee(s) will have the power, in general, to make decisions.

Personal Welfare decisions include:

(a)   where the Donor should live e.g. at home or in a nursing home;

(b)   whom the Donor should live with e.g. with the Donee or alone;

(c)   what medical treatments the Donor should undergo e.g. western medicine paired with complementary Traditional Chinese Medicine (TCM) or western medicine only, or elective surgical procedures; and

(d)   whom the Donor should meet with and what social activities he/she should engage in (if possible) e.g. chair yoga sessions for the elderly or ballroom dancing.

Property and Affairs decisions include:

(a)   dealing with the Donor’s property (i.e buying, selling, renting and/or mortgaging);

(b)   opening, closing and operating the Donor’s bank accounts;

(c)   handling the Donor’s tax matters; and

(d)   purchasing a vehicle or other equipment which the Donor may need.

By law, the Donee is prohibited from entering into certain decisions on behalf of the Donor. For example, the Donee cannot make decisions such as forcing a Donor to get married, changing the Donor’s religion or changing the particulars of the Donor’s CPF nomination.

LPA and POA are different legal instruments

LPAs are often confused with a Power of Attorney (“POA”). However, they are not the same legal instrument.

A POA is a legal instrument whereby a person (the “Grantor”) grants powers in favour of another person (the “Attorney-in-fact”) to act within the powers granted by the Grantor and to act on his behalf while the Grantor retains mental capacity. Once a Grantor loses his mental capacity, the POA will be deemed invalid.

On the other hand, an LPA will become effective only when a Donor loses his mental capacity.

Consider this scenario:

Mr Chan is a successful businessman who travels for business and is not always in Singapore. He has granted a POA in favour of his wife, Mrs Chan, in respect of the various commercial properties that he owns in Singapore. Over the years, Mrs Chan has helped him in the rental, sale and mortgage of these properties, and she liaises with the banks, mortgage brokers, and real estate agents on his behalf.

Unfortunately, Mr Chan suffered a stroke and has been in a coma for many weeks. Mrs Chan receives a call that a buyer has made an offer to purchase one of the commercial properties at a price far above valuation. She is keen but can no longer sell that property on Mr Chan’s behalf as Mr Chan no longer has mental capacity and therefore the POA is no longer valid.

If Mr Chan had issued an LPA and appointed Mrs Chan to deal with his commercial properties under his LPA, such LPA would come into effect now, and Mrs Chan can sell that property.

Types of LPAs

Currently, there are two forms of LPAs prescribed by the Singapore Government that one can use as a basis to prepare his / her LPA.

Form 1 LPA

This is commonly referred to as the Standard Version. The powers given to the Donee(s) are wide-ranging, and there are limited restrictions on the Donee’s powers. 98% of LPAs that are registered in Singapore are based on Form 1 LPA, which arguably grant very wide powers to donees.

Form 1 LPAs allow up to two Donees to be appointed and provide for the Donor to choose, in the instance two Donees are appointed, whether the Donees should make decisions jointly and/or severally. If a Donor wished for more checks and balances on a donee, then it would choose for Donees to act jointly (and not severally).

Anecdotal evidence suggests, however, that most LPAs provide for Donees to act on a joint and several basis, meaning that a Donee may make a decision on behalf of the donor or deal with the donor’s assets without consulting the other Donee. For example, in the event that the Donor loses mental capacity, a Donee needs only produce a medical report certifying the donor’s mental incapacity in order to access the Donor’s funds.

It can therefore be said that a Form 1 LPA grants free rein over the donor’s cash, property, and investments (akin to a ‘blank check’), and statistics from the U.S. and U.K.¹ point to LPA misuse as one of the commonest forms or means of financial abuse of the elderly.

Therefore, elderly persons at greater risk of financial abuse, including those who live alone, are affluent, have heirs who are not savvy in managing wealth or are prone to any form of addiction, or who have poor familial relationships, should strongly consider utilising Form 2 LPAs.

Form 2 LPA

In general, this is a more customised LPA, which can be used if a Donor has more requirements to be included in his LPA (e.g. if he wishes to give specific powers to his Donee).

Form 2 LPA also allows a Donor to set various restrictions in the Donee’s powers that are not available under a Form 1 LPA. This is an additional safeguard to ensure that the Donee does not abuse the powers given to him/her, and that the moneys are meant to be used for the Donor’s best interest.

Examples include:

(a)   specifying that the moneys in a particular bank account (and not all bank accounts belonging to the Donor) can only be withdrawn for a particular purpose, such as, for the payment of the Donor’s medical bills; and

(b)   specifying that the Donor does not wish to be placed in a nursing home, and that a sum of money is ear-marked for private nursing care in the Donor’s home.

Form 2 LPAs are also more suitable for business owners who may wish to appoint a Donee to specifically deal with company related affairs, but have no powers to deal with the Donor’s personal financial affairs.

Returning to the earlier factual scenario concerning the Chan Family:

Mr Chan is also one of the directors and shareholders of an SME company in the food & beverage industry. The company has been badly affected by COVID-19, and the board of directors are deciding whether the company should close some of its branches, and if so, which branches.

At the directors’ meeting, the directors are aware that Mr Chan has registered a Form 1 LPA and appointed Mrs Chan as his donee in respect of both personal welfare and property affairs decisions. Thus, Mrs Chan has the power to make decisions on behalf of Mr Chan as a director or shareholder of the company. As Mrs Chan is not familiar with the affairs of the company, she is unable to participate meaningfully in the discussions with the other directors.

A Form 2 LPA would have allowed Mr Chan to identify more than 2 Donees, and to allocate specific powers to these Donees which are not restricted by the standard form template in a Form 1 LPA. Instead of appointing Mrs Chan, Mr Chan could have appointed a peer in the same industry as that company (who could be more capable in making business decisions for that company) to have the limited power of making specific decisions on his behalf as a director and shareholder of the company.

Concluding Remarks

Having recently acted for a client in an acrimonious mental capacity dispute, we cannot emphasise the importance of planning ahead, and setting in place safeguards to ensure that in the event that we lose mental capacity, our assets and welfare will be protected by the people we trust, and decisions are executed in our best interests and in accordance with our wishes.

It is common to see a divorcing couple being unable to agree on how their assets should be split post-marriage, with differing accounts on how big-ticket items were financed before and during the marriage. This results in long, drawn-out court cases over the division of matrimonial assets, bringing much unhappiness to both parties and the people around them.

In this article, we aim to give an insight as to how both parties’ assets are split and divided post-marriage. Should you be looking to get married in the future or are currently married, this article aims to help you better understand the importance of forward planning, and what you should do now or avoid doing, in order to ensure that you obtain the best outcome for yourself in the unfortunate event of a breakdown of your marriage.

The division of a couple’s assets is generally done via two stages.

1. Stage 1: Firstly, all their assets are split into two categories: matrimonial assets (forming the “matrimonial pool”) or non-matrimonial assets.

2. Stage 2: Then, the assets in the matrimonial pool are divided amongst husband and wife according to a ratio / percentage determined by the Family Justice Courts.

In this article, we will be focusing on the first stage, the splitting of a couple’s assets into the matrimonial pool and the non-matrimonial pool.

To begin with, it is worth understanding that all assets (whether they are matrimonial assets or not) can be split into four classes of assets¹

1. Quintessential matrimonial assets;

2. Transformed matrimonial assets;

3. Pre-marriage assets; and

4. Gifts and inherited assets.

One important factor which will be taken into account by the Family Justice Courts when deciding whether an asset goes into the matrimonial pool or not is the time at which it was acquired – whether it was before or after the marriage. However, this factor does not matter for assets categorised as “Gifts and inherited assets”. Thus, to begin with, we will be discussing the class of assets of Gifts and inherited assets.

Gifts and Inherited Assets

Generally, Gifts and Inherited assets will not go into the matrimonial pool, regardless of when these assets were acquired. Exceptions to this rule are if

1. the asset has been substantially improved during the marriage by the other spouse or by both spouses, or

2. it is the matrimonial home.

Substantial improvement

For the non-owner spouse of the asset to substantially improve the asset, he/she must either invest money in it or invest effort which has economic value in it. For the investment of money, the Family Justice Courts have cited a paradigm example to be renovation works performed on a residential or commercial property. An example of an investment of effort which can transform a business into a matrimonial asset is the development of a business by the non-owning spouse or by both spouses during the marriage by sustained efforts.

Let’s illustrate this with a hypothetical example.

Mr and Mrs Tan have been married for 10 years, and have recently decided to get a divorce. During their marriage, Mrs Tan received a gift from her mother, a Cartier luxury watch. Ordinarily, this watch would not form part of the matrimonial pool as it is a gift purely from her mother to Mrs Tan.

However, during their marriage, the watch had stopped working, and Mr Tan brought the watch for repairs and paid for its repairs. Mr Tan had substantially improved the watch during the marriage, and this watch would now form part of the matrimonial pool.

Additionally, Mrs Tan’s father had passed away before she got married, and had left her a residential property located in Orchard Road. The residential property was transferred to Mrs Tan and continues to be registered in her sole name. After getting married, Mr Tan moved in with Mrs Tan into the property, and the couple continued staying there with their children for the rest of their marriage. Despite the Orchard Road property being an asset Mrs Tan inherited from her father and being in her sole name, it would form part of the matrimonial pool as it is now the matrimonial home of the parties.

Moving on to assets acquired otherwise than from gift/inheritance, these assets can be split into 3 categories:

1. Quintessential matrimonial assets;

2. Transformed matrimonial assets; and

3. Pre-marriage assets.

Quintessential Matrimonial Assets

As a start, all quintessential matrimonial assets will form part of the matrimonial pool. Quintessential matrimonial assets refer to:

1. assets which either spouse derived from income earned during the marriage (note: this includes salary earned);

2. assets to which either spouse or both spouses obtained legal title during the marriage by using their own money;

3. any other asset of any nature acquired during the marriage by one party or both parties to the marriage; and

4. the matrimonial home, whenever and however acquired.

Put simply, the matrimonial home and all assets acquired by either spouse/both spouses during the marriage, other than by gift/inheritance, constitute quintessential matrimonial assets, and will form part of the matrimonial pool.

We now move on to consider assets acquired by either spouse before the marriage, which can be divided into transformed matrimonial assets or pre-marriage assets.

Transformed Matrimonial Assets

All transformed matrimonial assets (the whole asset) will form part of the matrimonial pool. Transformed matrimonial assets refer to assets which were acquired before the marriage by either spouse, but which:

1. have been substantially improved during the marriage by the other spouse or by both spouses; or

2. were ordinarily used or enjoyed by both parties or their children while residing together for purposes, such as shelter (e.g. a vacation home), transport (e.g. a car) or household use (e.g. antique furniture in the home).

Let us use the earlier hypothetical example to illustrate.

Before Mr Tan got married, he was already the owner of 2 cars: a BMW X6 Sports Utility Vehicle (“SUV”), and a Porsche 911 Turbo sports car.

After the marriage, the SUV was regularly used to fetch family members around for activities like school, work and family outings. Thus, this SUV would form part of the matrimonial pool as it is a transformed matrimonial asset. This is because even though the SUV had been acquired by Mr Tan before his marriage, it was regularly used by both Mr Tan and Mrs Tan and their children while residing together for transport purposes.

However, the Porsche was generally driven around by Mr Tan only for his own activities during the marriage. Mr Tan does not allow his wife or children to use his Porsche. Mr Tan sends the Porsche for servicing and grooming. Thus, this Porsche would not form part of the matrimonial pool as it was neither substantially improved by Mrs Tan during the marriage, nor was it regularly used by the family.

Pre-Marriage Assets

Lastly, we consider the category of pre-marriage assets. Pre-marriage assets refer to assets that either spouse acquired before the marriage, which were not improved substantially by the non-owning spouse after marriage, nor were used for family purposes.

All pre-marriage assets will not form part of the matrimonial pool, unless they were partially paid for during the marriage by the owning spouse with income that would have been a quintessential matrimonial asset had it been saved up, rather than spent on the pre-marriage asset. In such a case, the asset would form part of the matrimonial pool, usually in the proportion of the value “acquired” or “invested” during the marriage.

Before getting married to Mrs Tan, Mr Tan was already the owner of a small vacation property in Phuket, Thailand.

During the marriage, neither parties nor their children visited the vacation property. Mr Tan however paid yearly maintenance fees from the parties’ joint account to refurbish and to maintain the vacation property as he hopes to sell the property one day for profit. The money used by Mr Tan for maintaining the property came from the parties’ earned income in their joint account. As these maintenance fees would have otherwise been saved up in the joint account, it is likely that the vacation property, or at least part thereof, would be included in the matrimonial pool. While we hope that the various examples above have helped you to better understand whether your asset would go into the matrimonial pool, these examples are but for illustration purposes only and are not meant to be legal advice.

In determining what asset would fall within the matrimonial pool and available for division would depend on how the parties acquired the asset, and how they lived and spent during their marriage. How the parties have enjoyed or used their assets will be specific to individual facts and circumstances and may lead to different outcomes depending on the facts.

Ultimately, the outcome weighs heavily on the specific facts of each case, which differ greatly from person to person. Being aware of whether your asset goes into the matrimonial pool allows you to make better decisions and take the necessary precautions to ensure that certain assets which you wish to safeguard will not be ordered to be split with your spouse in the event of a divorce.

At Jacque Law LLC, we have many years of experience handling a wide range of matrimonial matters (including contested and uncontested divorces). If you would like to discuss any of the above further, please do get in touch with us.

¹ Singapore Court of Appeal decision of USB v USA and another appeal [2020] SGCA 57

The term narcissism is derived from the Greek myth about the self-absorbed Narcissus who was cursed to fall in love with his own reflection in the water. Eventually, Narcissus killed himself over his unrequited love for his own image.

Narcissism can be categorized into two main types — grandiose and vulnerable narcissism. Individuals with the former tend to be charming and outspoken and often take on leadership positions. Famous figures like Donald Trump and Kanye West have been suspected to be grandiose narcissists. Vulnerable narcissists, on the other hand, possess more subtle traits and are usually characterized to be outwardly introverted and frequently shy away from the spotlight.

Narcissism exists on a spectrum, ranging from a few traits to a full-blown personality disorder. Full-fledged narcissism is a pervasive pattern of grandiosity (in fantasy or behaviour), a need for admiration, and a lack of empathy, usually beginning by early adulthood, and is indicated by five (or more) of the following traits¹:

1. Having a grandiose sense of self-importance (e.g, exaggerating achievements and talents, expecting to be recognized as superior without commensurate achievements).

2. Being preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love.

3. Believing that one is “special” and unique and can only be understood by, or should only associate with, other special or people or institutions with high-statuses.

4. Requiring excessive admiration.

5. Having a sense of entitlement (e.g. having unreasonable expectations of especially favourable treatment or automatic compliance with one’s expectations).

6. Being interpersonally exploitative (e.g., taking advantage of others to achieve one’s own ends).

7. Lacking empathy i.e. being unwilling to recognize or identify with the feelings and needs of others.

8. Often being envious of others or believing that others are envious of oneself.

9. Showing arrogant, haughty behaviours or attitudes.

If you have observed the aforementioned traits in your spouse, you may have valid suspicions that your spouse is a narcissist. Do inform your lawyer of this suspicion as this can have an impact on how your divorce will be handled.

Considering a narcissist’s insatiable desire for control and victory, one can expect a narcissistic spouse to refuse mediation or to settle on reasonable terms.

Narcissists crave attention, especially from their spouses, and such attention may not always be positive attention. Creating chaos in another person’s life is something that a narcissist may strive to do to receive negative attention from that person. For example, a narcissist may aim to exert psychological stress on his or her spouse by charming and persuading family and friends to turn on his or her spouse. As narcissists often possess a lack of empathy, their own children may not be spared from their antics – some may resort to manipulating their children in a manner adverse to their children’s interests to alienate their children from their spouses.

In this article, we share feasible tips on dealing with a narcissistic spouse during a divorce.

1) Stay calm

A narcissist has the propensity to distort the truth, so it is crucial that you keep your cool during interactions with your spouse. One of a narcissist’s favourite moves is creating chaos for others, so that they can revel in seeing others struggle and feel superior as a result. Your spouse may try to incite you to have emotional outbursts to get attention from you or, if such outbursts are recorded, to evidence emotional instability on your part during the divorce proceedings so that the Family Court Judge sees you as the crazy one and them as the reasonable one.

Therefore, try to remain calm in your dealings with your spouse and avoid reacting defensively, for example, displaying any emotional distress or angry outbursts.

2) Limit communications

Limiting communication with your spouse helps to prevent them from exploiting your emotions or making false accusations against you. Try to keep interactions minimal and in writing. Not only will this allow you more time to compose yourself mentally and think before responding, but it also enables everything to be recorded in writing so that your spouse cannot go back on their word or misreport conversations.

3) Prepare copies of important documents

Divorce proceedings with a narcissist can very much seem like going to war— one might expect a narcissistic spouse to resort to underhanded tricks in order to win, such as hiding or disposing of paperwork.

In order to remain one step ahead, it would be wise to compile as many documents that you can find, such as credit card statements, investment records, insurance policies, etc.

We have had experiences with narcissistic spouses who would go so far as to lie to the authorities and make false accusations against their spouses. In one case, a client’s spouse had made baseless allegations of violence against him. Thankfully, our client had maintained and kept extensive records and proper evidence of his dealings with his spouse during the divorce, and was able to defend himself against those allegations. It is therefore vital to keep or retrieve proper records of everything.

Records need not be confined to financial records and statements. For example, mobile phone communication, emails and photos can help your case if you wish to establish that there has been abusive behaviour by your spouse. Properly evidenced facts and figures will be more credible to a court than allegations without evidence.

4) Choose your battles wisely.

As narcissists crave praise and affection, being on the opposite side of a divorce from a narcissist will likely establish you as an ‘enemy’ from their perspective. This can trigger feelings of abandonment and rage in them, prompting them to take extreme measures to regain a sense of control over the situation.

What could have been an amicable divorce can quickly turn into a high-conflict one where your spouse may seek to take everything away from you.

The narcissist’s game, especially wealthy ones, is to outspend you and ruin you financially. They may take out unnecessary applications to put pressure on you or simply to frustrate you.

Prioritise what is most important to you and decide on things that you can give up on. Letting go of some less important things to you can satisfy your spouse’s thirst to ‘win’, while at the same time safeguarding what is more important to you.

It is crucial to pick your battles wisely, as narcissists may be willing to prolong divorce proceedings in order for the chance to win, in the process wasting both parties’ time, money and energy. Setting realistic goals and choosing to give up on secondary things may be more worthwhile as you can avoid an unnecessarily long and hostile divorce process that you and your family will otherwise have to endure.

5) Have a solid support system.

Abusive narcissists tend to isolate their victims. Divorce is itself an emotionally exhausting process, so it is important to confide in family members, friends or even therapists with whom you can share your side of the story with. In the midst of the turmoil, you may neglect your own well-being. Do surround yourself with people whom you trust to advise and take care of you.

You will need a strong support system to maintain your mental health throughout the divorce proceedings. Do not be embarrassed to seek help for fear that your feelings are not justified. This is especially so if you have suffered from emotional manipulation by your spouse, as you may be used to being blamed and invalidated.

6) Create a parenting plan if you have children with a narcissistic spouse.

Co-parenting with someone you are embroiled in a divorce with is particularly challenging, much less with a narcissist who may use your children as a pawn in the proceedings in order to win. Therefore, designing and following a parenting plan for the period during the divorce will reduce confusion and conflict for both parents and children. You can enlist a family lawyer’s help to draw up a legal custody and access agreement to specify the sharing of costs and visitation / access schedules during the school term and during holidays.

Making the proposal as detailed as possible minimises any grey areas and serves to hold your soon to be former spouse accountable for his or her responsibilities in order to give your children a sense of normalcy and clarity. Though this may cost more compared to a generic parenting plan, it is advisable as you can set clear boundaries with your spouse for your children’s best interests and to reduce the risks of further disputes in future.

Furthermore, it will also serve to lessen the amount of contact and friction between you and your soon to be former spouse, thereby creating a more pleasant environment for your children to grow up in.

7) Seek an experienced family lawyer.

Hire a divorce lawyer who understands how divorcing a narcissist differs from normal cases. Though it takes a psychologist to diagnose someone with Narcissistic Personality Disorder, lawyers who have experience in acting for clients with narcissistic spouses can recognise certain traits and may be able to flag to you that your spouse is a narcissist.

Divorce lawyers who are experienced in handling protracted and complex divorce cases involving a narcissist can anticipate what a narcissistic spouse may do or say and devise a more effective strategy for you.

One must remember that narcissists love conflict, they love a battle and they will do anything to win no matter the cost. So unless you have unlimited money, you need to find a lawyer that can balance the unreasonable demands with logic and the tools of law to stop the narcissistic divorce train from running you into financial ruin.

Your lawyer needs to understand when to push the button of law and when not to react. Remember the narcissist’s goal is to get you to react. Your lawyer needs to be your rock to give you much-needed emotional and legal support, and be able to outwit your narcissistic spouse’s tactics to protect you from being manipulated.

We have been involved in many matrimonial and divorce proceedings involving narcissistic spouses, and have worked with clinical psychologists that are experts on narcissism While these cases tend to be more protracted than other normal divorces, narcissistic spouses tend to behave in a similar pattern. If you believe you are married to a narcissistic spouse, and plan to divorce him/her, please feel free to contact us to assist you in the strategy and your divorce journey.

If you would like to discuss any of these further, please do get in touch with us.

If you are newly divorced, undergoing a divorce, or considering separating from your spouse, we understand that this is not an easy time for you. If you and your spouse/former spouse have a child or children together, the situation can be even tougher.

During a time when tension between parents is at its highest and conflict regarding parenting responsibilities and access to children arises, some may worry that the spouse/former spouse may resort to parental alienation in an effort to control and hinder the emotional relationship the children would otherwise forge with them.

Parental alienation is a situation where one parent uses strategies to manipulate his/her child to have unjustified feelings of animosity or fear towards the other parent, in order to distance a child from the other parent.

Parental alienation may occur consciously or unconsciously. In fact, research indicates that in 11 to 15% of divorce cases, parental alienation was found to be present. It is estimated that 1% of children globally are subjected to some form of parental alienation with an equal distribution between fathers and mothers being alienated and doing the alienation (Bernet, von Boch-Galhau, Baker, & Morrison, 2010; Fidler & Bala, 2010; Kruk, 2011).

If you are a parent navigating a divorce, it is important that you be able to recognize the types of parental alienation, and have a plan to address any problems that may arise.

There are 3 main types of alienators:

i) Naïve alienators

The naïve alienator wants the child to have a good relationship with the other parent, does facilitate the child’s access with the other parent, and does not have any ill intentions. However, while the parent means well, the parent may unconsciously make passing remarks criticizing the other parent.

For example, “tell your mother it would help if she was on time to pick you up”, or “tell your father that he has more money than I do, so get him to buy you your new sports shoes”.

While those are trivial comments, it can cause the child to be apprehensive as to how to treat the other parent. Thankfully, this problem is likely to be easily solved once it is pointed out to the naïve alienator, reminding him / her to be more mindful of his / her words and actions.

ii) Active alienators

An active alienator is similar to a naïve alienator in that they both believe that children should have a good relationship with both parents. Like naive alienators, they are able to differentiate between their needs and those of the children by supporting the children’s desire to have a relationship with the other parent.

However, unlike a naïve alienator, an active alienator tends to have strong feelings of bitterness or frustration towards the other parent.

As such, they struggle with not letting their own pain affect their behaviour during the co-parenting and divorce journey. Their problem has more to do with loss of self-control when they are upset with the other parent than with a sinister motivation. Hence, this may result in angry outbursts and complaints, or arguments with the other parent in front of the children.

For example:

“Why did you have to tell your father that your swimming classes are cancelled? The miser will now ask his attorney to deduct the swim coach fees from the child’s maintenance. I plan to use the money for a staycation with you. You remember he has done it before and deprived us of the spare cash for our Christmas party.”

While active alienators generally comply with the access and maintenance court orders, they can be very rigid and uncooperative with the other parent. This is usually a passive attempt to strike back at the other parent.

For example, in a court order that was previously agreed by the parties a few years ago, both parents agreed that the father could bring the child for an annual overseas trip for up to 7 days during the school holidays. However, due to the COVID-19 travel restrictions, the father wanted to bring the child for a staycation instead. The mother refused as a staycation does not constitute an “overseas trip”. As a result, this necessitated us having to take out a Court application in the Family Justice Courts on the father’s behalf to vary the initial court order to allow him to bring the child for staycations.

For the most part, older children have their own views about both parents based upon their personal experience rather than what they are told by others. To maintain harmony, the older child usually learns to keep their views to themselves. The younger and more trusting children tend to be in a dilemma as to which parent they should believe and more vulnerable to the active alienator’s manipulation.

Since active alienators do not usually have any malicious intent and have a genuine desire to act in the child’s best interest, they may act rationally after calming down. They may apologise to the child or the other parent. They are also open to accept professional help as well as attend mediation sessions to resolve any underlying issues with the other parent.

iii) Obsessed alienators

Unlike the 2 aforementioned alienators, an obsessed alienator speaks or acts with the purpose of causing estrangement.

Obsessed alienators typically present with narcissistic or borderline personality traits. When their relationship ends with the targeted parent, for whatever reason, the obsessed alienator experiences an abnormal grief reaction called narcissistic injury. They will intensely feel the loss and embarrassment of the loss. They will externalise the cause of their pain and will want the targeted parent to suffer for their pain.

The obsessed alienator has an unquenchable anger and bitterness towards the other parent, and these feelings do not subside but instead becomes more intense as he/she is being forced to continue a relationship with an ex because of the children. While they combine traits of naïve with active alienation, they lack any level of self-control or insight.

The alienating parent will want his child to be firmly on his/her side and turn his/her child against the other parent by giving biased perceptions of the targeted parent. For instance, if the other parent is not free to meet their child as scheduled, the alienator will tell their child that the other parent does not care or want to meet them.

For example, “Your mother is not free because she is busy dating. Just like how she abandoned me for another man during the marriage, she will no longer care for you once she starts a new family. I, however, will always be here for you.“

Obsessed alienators may also find ways to prevent their child from interacting with the other parent and plant seeds of doubt in the child’s mind about the alienated parent. For example, the parent might reconstruct past events to make the child believe nasty and untrue things about the other parent. The obsessed alienators may also manipulate the legal system in order to deprive the other parent from access to the child.

In one of our cases, the obsessed alienator mother lodged a false police report and filed a personal protection order against the child’s father. The child’s mother lied that the child’s father pointed a knife at the child when the child was sleeping and threatened to kill the child and the mother. The child’s mother also submitted pictures of cuts on the child’s arm and claimed that the cuts were inflicted by the child’s father.

Although these were all lies, the child’s father was deprived of his access to the child for many months as the child was so terrified of her father that she refused to spend time with him. It also took months of mediation and counselling before the obsessed alienator finally agreed to withdraw her personal protection order application against the child’s father as it was made without any basis.

Divorce inevitably creates stress and tension for everyone in the family. Children often face difficult adjustments in this transition period. When one parent attempts to sabotage their child’s relationship with the other parent, it is the child who suffers the most. Parental alienation prevents children from receiving the reassurance and support they need—from both parents—to successfully adapt and adjust to their new family dynamics.

Is parental alienation affecting your relationship with your children and your child custody arrangements?

We understand that alienation from your child can be devastating and we will work with you to strengthen and repair your relationship with your child. You do not need to be defenseless to the alienator’s tactics.

Please feel free to contact us at 6280 7388 or drop us a WhatsApp to explore how we can best help you.

In a divorce, the soon to be ex husband and wife may agree on the terms of the monthly payments to be made by one party to the other. If no agreement can be reached, they must await determination by the Family Justice Courts. Upon divorce, the terms of such payments will be recorded in a Family Court Order that is binding on the parties.

These payments are commonly referred to as maintenance. There are two types of maintenance – spousal maintenance (or alimony as it is more commonly known) and child maintenance.

While a court order on maintenance is binding on the parties, the terms of such an order can be changed provided both parties agree to the change. Otherwise, the party seeking for the change must convince the Family Justice Court that there has been a “material change in circumstances” in order for the Family Justice Court to order a change to the maintenance terms.

We have seen a rise in numbers of retrenchment and wage cuts, and a corresponding increase in our caseload for applications to vary and reduce maintenance payment obligations.

In this article, we aim to help you better understand the factors that will be taken into account when determining if a variation should be granted in the event of a party’s retrenchment.

For the purposes of this article, we will only be focusing on child maintenance. To determine if a variation of child maintenance ought to be granted, the Family Court judges will look at a variety of factors, which we will elaborate on below.

Overview

According to the Women’s Charter, the Court has the power to vary a child maintenance order if and when there has been a material change in circumstances.

At first blush, retrenchment of the paying party seems to be a material change in circumstances warranting a reduction in one’s maintenance obligations. After all, the paying party ceases to have a source of monthly income. However, a mere change in financial circumstances is generally insufficient. The change in financial circumstances must be adverse towards the party seeking for the variation. The Court will consider other factors to determine this, including the retrenched party’s financial position and if there has been a change in standard of living.

In addition, since the welfare of the child/children would be paramount, the judges in the Family Court will also consider the impact a variation order (if they were to grant it) will have on the child/children.

Retrenched Party’s Financial Position

The Family Justice Courts will look at the retrenched party’s financial position. Income from employment is but just one aspect of a party’s financial position. Other factors to consider would include the amount of savings the retrenched party has, his existing liabilities, and the size of the severance package given at retrenchment are also crucial. The Family Justice Courts will consider these different aspects before making a judgement on the retrenched party’s financial position.

Let’s illustrate this with a hypothetical example.

Ethan has been retrenched from his company and seeks to vary the child maintenance downwards. At time of retrenchment, Ethan only received two months’ salary as his severance package. Since his retrenchment, he has not been able to find a job and has been unemployed for more than six months. As Ethan has an existing mortgage and an elderly mother to care for, he is now gravely in debt. Two of his credit cards have been cancelled, and he is struggling to pay his income tax arrears. In contrast, Ethan’s ex-spouse is well-off and owns two properties and a car.

In such a situation, given Ethan’s impoverished state following his retrenchment, his loss of income will likely be sufficient to constitute an adverse change in financial circumstances. If, however, Ethan amassed huge amount of savings over the years and received a large sum of money in his severance package, the Family Justice Courts may not hold that there has been an adverse change in Ethan’s financial circumstances.

Retrenched Party’s Standard of Living

In addition, the Family Justice Courts will also consider the retrenched party’s standard of living. The applicant seeking the variation must prove that there has been a material change in his own standard of living.

Consider another hypothetical example:

Leonardo has been retrenched from his company. As a result, Leonardo has decided to cut back on his luxury expenses and has sold his Porsche sports car. He has however not moved out of his apartment in Orchard Road, and has not cut down on his food and entertainment expenses. Leonardo now relies on the sale of his Porsche as evidence for a material change in his standard of living to reduce his child maintenance obligations.

In such a case, it is unlikely that the sale of the sports car is itself sufficient to show that Leonardo’s standard of living has materially changed. This is because a sports car is a luxury that Leonardo could definitely live without. When a party is retrenched, it is almost expected that he or she would eliminate luxuries. Thus, such elimination is in itself inadequate to prove that the change in standard of living is indeed material.

To prove that the change in standard of living is material, based on our experience dealing with similar applications, it is necessary for Leonardo to show that he has reduced his personal expenses in a meaningful manner, such as tightening of the belt with regards to necessitates. For example, cutting down on expenses such as hobbies (selling his golf membership, forgoing his weekly karaoke night), and entertainment and dining out.

Impact the variation has on the children

Even if the above two factors lie in favor of finding a material change in the party’s circumstance, the Family Justice Courts may not necessarily grant the variation of child maintenance.

Family law fundamentally recognises that each biological parent has an independent and non-derogable duty to maintain the child. When deciding cases, protecting the children’s welfare will always be the paramount consideration of the Family Justice Courts. Thus, notwithstanding that the retrenched parent’s circumstances has been materially affected, the Family Justice Courts will not automatically grant a variation but will instead take into consideration whether it is reasonable for the welfare of the child that the maintenance be varied.

This begs the question of what is considered “reasonable for the welfare of the child”. To determine this, the Family Justice Courts will need to first consider what the children’s reasonable expenses are and look at the parents’ respective salaries and/or earning capacities as an indicator of the proportion that each party should bear.

In the event that a downward variation of child maintenance will result in inadequate funds to support the child’s reasonable expenses and that it is unfair to expect the other party to increase his or her contribution towards the child’s maintenance, it is unlikely that the variation will be granted.

Conclusion

A party who gets retrenched may be interested in seeking a variation of the monthly maintenance sum. In our view, while the judges are sympathetic to the plight of the retrenched party, they take a wholistic approach to determine if the variation should be allowed.

Ultimately, the Family Justice Court’s decision for any family law matter will always revolve around a balancing game of the interests of the three parties – the Father, Mother and Child – with the child’s interest being paramount.

If you or your former spouse’s ability to maintain the children has been affected by a recent retrenchment, you may have to reach an agreement with your former spouse on how the existing child maintenance order ought to be varied.

To ensure that you can create the right arrangements for you, or if you’re unsure how to approach the issue of child maintenance, it’s worthwhile seeking advice from experienced family law solicitors.

If no agreement can be reached, a contested child maintenance dispute may be inevitable, which will only serve to add stress, costs and increase the acrimony between the parents.

At Jacque Law LLC, we have worked on many divorce cases involving child maintenance disputes, and can guide you through the entire process, providing dedicated advice specific to your circumstances.

Being a litigation focused firm, we are experienced in handling debt recovery and have helped various corporations and companies in their corporate debt recovery. Our lawyers have considerable experience in all aspects of debt recovery and dispute resolution, including the following

• Issuance of letters of demand
• Enforcement of court and/or tribunal orders, including garnishee orders, examination of judgment debtor and writ of seizure and sale.
• Negotiations with debtors
• Investigation and searches into debtor’s history and assets
• Bankruptcy and Winding up

Our experience extends to recovery of debts of varying quantum and our lawyers have experience litigating at all levels of the Singapore courts. For example, our lawyers have acted for a leading property developer in relation to the recovery of outstanding payments due from different individual purchasers of its properties, and construction companies in relation to recovery of outstanding payment for services rendered to their suppliers.

Our aim for any engagement is to help you recover the debt. This ideally means we recover early, and avoid going to court.

For illustration, we set out below the typical steps of escalation that occur in debt recovery cases.

1. Obtaining your instructions and review of documentation

• We will speak to you to have a full understanding of your current situation so we can advise on the appropriate next steps.
• We will carry out an earlier evaluation to assess any potential issues that may arise and guide you on the options available, timing and costs. For corporate clients, we can also offer you debt management advice on how to improve your terms and conditions and processes.

2. Debtor investigations

• Perform due diligence on the debtor to ascertain the financial capability to pay back any debt.

3. Issuance of Letter of Demand

• The letter of demand is used to provide notice of a party’s intention to enforce their rights, such as the recovery of debt (personal loans or when there has been a breach of a contract in a business relationship). It is also worth noting that if you anticipate that the debtor will breach an agreement or contract, you can also send them a letter of demand.
• To be used (if necessary) in court to provide evidence of a parties attempt to recover the debt prior to bringing the matter to the appropriate court.

4. Communications between debtor and creditor

• We await a response from the debtor after their receipt of the letter of demand. We will support in negotiation between parties where required.

5. Filing of Court Action

• If the letter of demand proves unsuccessful we can then file a claim with the appropriate court. The amount and type of claim will depend on the route taken.

6. Enforcement of Court Order

• Even after a successful court decision, it is possible that the debtor may still not pay up. We will advise on the appropriate next steps to enforce the collection of the debt.

As the process of debt recovery is unique to each situation, the above should not be construed as legal advice. Our lawyers will advise you on the appropriate steps as part of your consultation with us.

The consequence of an unfortunate event occurring due to a doctor’s negligence can be severe and at times, the injury can be long-term. What can you do if you have suffered injury as a result of a doctor’s action during a medical treatment? Potentially, you may have a claim to an action in tort against the doctor (i.e. medical negligence).

If you are facing a potential medical negligence issue against your doctor, you should seek legal advice as soon as possible because such a claim is only valid for a period of 3 years after the day you have knowledge of the injury which was caused by the potential breach.

In a nutshell, medical negligence or medical malpractice, occurs when a healthcare professional fails to provide the standard of care expected of them, resulting in harm or injury to the patient. Examples of medical negligence include misdiagnosis / wrong diagnosis, delayed diagnosis, surgical errors, medication errors, and failure to obtain informed consent from the patient. Medical negligence can occur in any healthcare setting, including hospitals, clinics, and nursing homes.

We recognise that medical negligence is a serious issue. Often, the impact is vast with severe consequences for the affected patients such as:

1. Physical injuries, such as infections, scars, the need for further surgery, amputations, or organ damage;
2. Emotional distress, such as clinical depression, or post-traumatic stress disorder (PTSD);
3. Financial losses, such as hefty medical bills, loss of income, or reduced earning capacity; and
4. Loss of life, in severe cases.

If you are of the view that you are a victim of medical negligence, there are several steps that you might wish to take:

1. Seek Medical Attention: If you have suffered harm or injury, seek medical attention immediately. Your health should always be a priority. Instead of returning to the same medical practitioner, you may consider seeking a second medical opinion from another medical practitioner.
2. Gather Evidence: Collect all relevant medical records, documents, and bills related to the incident. Photographs of any injuries which were caused by the negligence are often also useful and should be taken upon realising the presence of an injury.
3. Consult with a Lawyer: Consult with an experienced and suitable medical malpractice lawyer to discuss your legal options as soon as possible. Proper legal guidance is always recommended to ensure you do not unknowingly destroy useful evidence, compromise your position and/or tie yourself down to an unwanted position.
4. File a Complaint: File a complaint with the appropriate healthcare institution, regulatory authority or licensing board.
5. Seek Compensation: Seek the appropriate expertise and consider if this is a matter that has sufficient legal merits to pursue compensation for damages.

To succeed in an action against a doctor / hospital for medical negligence, you must establish that a doctor / hospital owes you a duty of care and that duty of care has been breached which caused your harm or injury.

At Jacque Law LLC, we have worked on many medical negligence cases, and have successfully assisted many of our clients in resolving their disputes amicably. We understand that it can be a complex situation, invoking much anxiety and stress onto the individuals involved, and would be happy to guide you on this.

Feeling uncertain about your case? Please feel free to contact us at 6280 7388 or drop us a WhatsApp at +65 8893 8428 to explore how we can best help you.

Introduction

Mental capacity is a fundamental aspect of our cognitive abilities, enabling us to make decisions, process information, and understand the world around us. However, in some cases, individuals may experience a gradual or sudden decline in mental capacity, leading to significant challenges in their daily lives.

Loss of mental capacity can occur due to various factors, including aging, neurodegenerative diseases like Alzheimer’s and dementia, brain injuries, stroke, mental health disorders, or intellectual disabilities. The decline in mental capacity can manifest differently in individuals, affecting their ability to communicate, manage daily tasks, and maintain relationships.

As such, it is becoming more and more important to make a Lasting Power of Attorney so that you can be prepared for the unexpected.

What is a LPA?

A Lasting Power of Attorney (“LPA”) is a legal document that allows an individual who is at least 21 years of age (referred to as the “donor“) to appoint a trusted person or persons (referred to as the “donee” or “donees“) to make decisions on their behalf in case they lose mental capacity or become unable to make decisions for themselves.

A LPA is commonly used in situations where an individual wants to ensure that their affairs are managed and decisions are made in their best interests if they are no longer able to do so. This could occur due to aging, illness, injury, or any other circumstances that result in a loss of mental capacity.

There are two (2) types of LPAs:

1. Property and Financial Affairs LPA: This type of LPA grants the donee(s) the authority to manage the donor’s financial and property matters. This can include tasks such as paying bills, managing investments, buying or selling property, and making decisions about the donor’s finances.
2. Personal Welfare LPA: This type of LPA authorizes the donee(s) to make decisions about the donor’s healthcare, medical treatment, living arrangements, and general welfare. This can include decisions about medical care, residential care, and even decisions about life-sustaining treatment, if specified by the donor.

What is loss of mental capacity?

The Singapore Government introduced the Mental Capacity Act to address the increase in mental illnesses as the population ages. The Mental Capacity Act came into effect in 2010.

Section 4(1) of the Mental Capacity Act set out the requirements for assessing whether someone lacks capacity.

“A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of the mind or brain”.

There is a two-stage test in assessing mental capacity:

Stage 1: Is the person suffering from an impairment of, or disturbance in the functioning of, the mind or brain?

Stage 2: If so, does the impairment or disturbance cause the person to be unable to make a decision when he needs to?

Section 5 of the Mental Capacity Act elaborates on what it means when an individual is “unable to make a decision” and tells us that capacity is both “time-specific”, focusing on the particular time when a decision has to be made – so the loss of capacity can be temporary, partial, or fluctuating; and “decision-specific”, concentrating on the particular matter to which the decision relates, rather than the ability to make decisions generally.

So, someone may lack capacity in relation to one particular matter, but not necessarily another.

What amounts to loss of capacity?

In the Singapore High Court (Family Division) case of BUV v BUU, an elderly lady, UWP, was 89 years old at the time legal proceedings were commenced. She was suffering from dementia, had no formal education and was illiterate. However, she was able to understand and speak in the Teochew dialect.

UWP favoured her second son at the expense of the third son. In 2016, she had executed an LPA authorising her second son as her donee to make decisions in relation to her personal welfare, property and financial matters. In the same year, UWP executed a will with the second son as a beneficiary but left nothing to the third son.

Over the course of the legal proceedings, it was clear from the elderly lady’s performance under cross-examination on the witness stand that she was not able to follow the proceedings, understand what was asked of her and absorb the information provided to her. The elderly lady was also unable to recall the nature and contents of the legal documents she apparently executed, and could not recall information about her bank accounts and family.

This raised serious doubts about the elderly lady’s ability to retain information relevant to decisions relating to her property and affairs, and particularly in respect of her funds. The medical evidence showed that she was, at the very least, impaired in her judgment and mental abilities.

As such, the Singapore High Court found that the elderly lady lacked mental capacity at the time she executed her LPA and Will. The LPA and Will executed in 2016 was thus set aside / invalidated by the Singapore High Court.

Conclusion

As you are only able to make a LPA when you have mental capacity, do not wait until it is too late before deciding to execute an LPA.

Having an LPA in place provides peace of mind to the donor, knowing that trusted individuals are appointed to make decisions on their behalf if and when they are no longer able to do so themselves. It also helps to ensure that the donor’s wishes and best interests are respected, reducing potential conflicts and ensuring a smooth management of their affairs during challenging times.

For assistance on estate planning, please call us at 62807388 or WhatsApp us at 88938428 to make an appointment.

Imagine this scene. A family is grieving over the recent death of the patriarch of the family. They gather around in the living room to share fond memories of the late patriarch. Their anecdotes eventually descend into discussions of the grant of probate and the distribution of the deceased’s estate. The lawyer arrives and reads out the will of the deceased. A shocked silence descends upon the family members. After a few seconds, accusations are thrown around, angry tears are shed, and chaos ensues. 

While this scene is an obvious dramatization that countless movies portray, it is not uncommon for such inheritance disputes to arise in real life. These disputes can damage relationships between family members and make it more difficult for them to cope with their loved one’s passing.

We thought it would be helpful to share our experiences and knowledge of common inheritance disputes in Singapore. For ease of reference, the deceased is referred to as the testator in the examples below.  

Key terms
• Testator: A person who has prepared a will indicating how his/her estate should be managed and distributed after his/her death.
• Beneficiary: A person who is named in the will to inherit something from the distribution of the estate of the testator.
• Execution of a will: The process of signing and making a will legally binding.

1. Disputes between siblings

Inheritance disputes between siblings usually arise where the relationship between them was already strained prior to the loved one’s death.

One or more siblings may think that they have not sufficiently benefitted under the loved one’s will, and they may blame other siblings for manipulating the testator. Siblings may rope in other siblings and relatives to gather support in the midst of the dispute. This causes unhappiness and grievances within the family and has the ability to tear families apart, whether the matter is eventually litigated or not.

Disputes between siblings are most likely to arise in the following situations:

·       Where siblings receive starkly different proportions of the testator’s entire property; or

·       Where one or more siblings are completely cut out of the testator’s will. 

Sibling disputes may be aggravated by the following circumstances:

·       Where the testator suddenly changed his/her will close to his/her death, and the terms of the new will were substantially different from the previous will.

·       Where a sibling who substantially benefits from the will was considerably involved in its preparation.

·       Where the testator’s favourite child was cut out of the will for no apparent reason.

·       Where the testator’s will does not reflect his/her wishes as he/she had informally shared with his/her children.

2. Disputes where a non-family member is a substantial beneficiary  

Where a non-family member shares an unexpectedly close relationship with the testator and becomes a major beneficiary under the will, other family members may feel robbed of their rightful share of the testator’s estate. The intentions of the non-family member will be called into question, especially where the non-family member is considerably younger than the testator was, or where the friendship or relationship developed recently. In such cases, the issue of undue influence may be raised.

In TCZ v TDA, TDB and TDC [2015] SGFC 63, a young man befriended an elderly lady. Over a few years, he built a relationship of trust with her and led her to believe that he cared for her, while gradually distancing her from other people, such as her niece. The evidence showed that this was done with the sole intention of gaining her money and assets.

The elderly lady’s niece challenged the validity of the will by claiming that she was unduly influenced by the young man, and the Family Court agreed. The circumstances of the relationship between the young man and elderly lady did not indicate a genuine friendship. 

3. Disputes where the testator had multiple romantic partners 

Where the testator was married and had children with different women, it is not uncommon for the disputes to arise where a mistress or illegitimate child is given a share of the testator’s assets and it is the first time the family is made aware of the existence of the mistress or illegitimate child. 

Where a family member wishes to challenge the validity of the testator’s will, he/she can challenge it on the following grounds: 

4. The testator did not have mental capacity at the time of the making and execution of the will. 

Individuals may lose mental capacity due to aging, neurodegenerative diseases like Alzheimer’s, stroke, brain injuries, mental health disorders or intellectual disabilities. This affects their ability to process information and make decisions. 

It is crucial that the testator understands the nature of the will and its consequences, i.e. which assets will be given to which beneficiaries. In situations where there are doubts as to the mental capacity of the testator at the time that he/she made and executed the will, a family member may question whether the will indeed reflects the testator’s real wishes.

If it is found that the testator did not have mental capacity at the time that he/she made or signed the will, the will is considered invalid. It is important to note that:

·       To pursue such a claim, medical evidence, such as evidence of the testator’s state of mind at or around the time when the will was executed, is generally sufficient.

·       Physical illness does not mean that a person is mentally incapacitated. A person may be physically unwell but still be capable of executing a will.

5. The testator did not have knowledge and did not approve of the contents of the will.

It may be the case that the testator does not know the contents of the will that he/she has signed. This could happen where the will is drafted in a language that the testator does not understand, and the will has not been read out and explained in a language that he/she understands.

Some wills contain complex terms and legal jargon on the division of the testator’s assets. In such cases, if the terms of the will are not sufficiently explained to the testator, the testator may not have knowledge and consequently did not approve of the contents of the will.

6. The testator was unduly influenced at the time of the making and execution of the will.

Even where a person has mental capacity, he/she may be unduly influenced by a particular family member or non-family member into making and signing a will that does not correspond with his/her real intentions or is not in his/her best interests.

In situations where one of the testator’s children was particularly close to the testator, especially during the time that the testator made and executed the will, other family members may raise undue influence claims. In such cases, the court will need to, inter alia, scrutinize the circumstances leading to the execution of the will, determine the rationality of the terms of the will and ascertain whether that particular child benefitted more under the will simply because he/she was the testator’s favourite, or because he/she unduly influenced the testator.

Conclusion

Inheritance disputes damage familial relationships and taint the memories that family members may have of the testator. Such legal disputes can be unpleasant and prevent families from finding closure after the passing of the testator. 

It is also unlikely that the testator would have wished to leave his/her loved ones in a state of confusion and animosity.  As a testator, you can take steps to protect your loved ones from getting entangled in such disputes by being aware of such pitfalls.  

Need Assistance? 

If you are a beneficiary or an executor, and you need advice regarding a dispute, our contentious probate solicitors can offer you the legal assistance you need.   

At Jacque Law LLC, we have experience and knowledge in disputes between beneficiaries as well as disputes between executors and beneficiaries.  We have represented clients involved in inheritance related disputes, and will approach every case with empathy and professionalism and assist you with resolving your matter as best as we can. 

For more information or to discuss the details of your case with us, please contact here or drop us an email!

Jacqueline Chua, Managing Director

+65 6280 7388

[email protected]
 

Other Frequently Asked Questions About Inheritance Law

1. What is the role of the surviving spouse in the event of a dispute over the deceased’s estate?

The surviving spouse has a significant role in inheritance matters, especially if named as the appointed executor or beneficiary in the will. Under Singapore’s inheritance laws, the court may order payment out of the estate for the provision of maintenance to the surviving spouse even if he or she has been disinherited/excluded from the Will. In the absence of a will, the Intestate Succession Act or the Muslim Law Act, if applicable, dictates the distribution. Under the Intestate Succession Act, the surviving spouse is entitled to a portion of the deceased’s estate, which varies depending on whether there are surviving children or parents.

2. How do inheritance laws in Singapore address the distribution of assets to legal heirs?

Inheritance laws in Singapore, including the Intestate Succession Act and the Muslim Law Act for Muslims, outline clear rules for distributing a deceased’s assets among legal heirs. This includes the entire estate, such as bank accounts, private properties, and insurance policies without nominated beneficiaries. The distribution pattern varies based on the presence of surviving spouses, children, parents, and other relatives.

3. How are bank accounts and private properties handled in inheritance disputes?

For bank accounts and private properties held in joint tenancy, the principle of survivorship would usually apply, such that the surviving joint tenant(s) would automatically inherit the asset regardless of what is stated in will. However, there are certain exceptions to the principle of survivorship. In particular, survivorship would not apply where it can be shown that the deceased did not intend for the survivor to inherit his/her share of the joint asset upon his/her death. An example where such an exception may arise is when the deceased opened a joint bank account with a third party purely for administrative reasons without any intentions for the said third party to inherit the bank account moneys, and had also solely contributed to the moneys in the account during his/her lifetime.

If the deceased was the sole owner or held the assets as tenants-in-common instead, these assets become part of the entire estate and are distributed according to the will or intestacy rules. 

4. How do joint tenancy and the rights of flat owners affect inheritance?

In Singapore, properties owned in joint tenancy follow the right of survivorship, thereby bypassing the deceased’s will. Joint tenancy is common among married HDB flat owners and private property owners. Conversely, properties held in tenancy-in-common form part of the estate and are distributed according to the will or intestacy rules. It’s crucial for property owners to understand these distinctions for estate planning purposes.

5. What happens if there is no appointed executor in the will?

If the will does not name an executor or if the appointed executor is unable or unwilling to act, family member(s) of the deceased may make an application for a Letters of Administration to be appointed as the administrator of the deceased’s estate. The Intestate Succession Act sets out the priority of each class of family members who are entitled to a grant of Letters of Administration. The order of priority is as follows:

1. Spouse
2. Children
3. Parents
4. Siblings
5. Nephews and nieces
6. Grandparents
7. Uncles and aunts

If a family member with a higher priority does not wish to be appointed as an administrator, he/she should renounce his/her right to apply for the letters of administration by signing a renunciation. 

Alternatively, a family member may make an application for the Public Trustee to administer the deceased’s estate if the total value of the deceased’s estate does not exceed S$50,000. Such applications may be made directly to the Public Trustee.