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25 Feb 2011

The Lawyer Is In: The will to love

While wills are one of the most commonly used tools to ensure that one's possessions are inherited by the intended beneficiaries, it can also be a lasting way to pronounce one's care and love for one's partner, LGBTQ child, siblings and friends. Fridae's legal columnist George Hwang suggests how.

Dear Readers,

This month’s column was nearly finished in January as I half answered some of the questions sent in to Fridae. I have chosen two questions and a clause that I “invented” to meet a client’s instructions.

 

However, two events have made me decide to concentrate solely on the clause. They are thedeath of David Kato, an activist in Uganda, and Singapore’s censorship authority’s decision in allowing only one copy of The Kids Are All Right to be screened. This is the first time such a limit has been imposed on a category R21 film slated for commercial release (as opposed to a film festival screening). The reasons for publishing the clause have now increased. Whereas, the sole reason was for couples to attest their love, its ability to change society now appears. I have also drafted similar clauses for other circumstances.

 

If you love yourself, your partner, children, parents, siblings or friends, please use one of these clauses for your will. We in Singapore are always talking about social engineering. It need not be top down. It can be organic. Death can be the most powerful tool to influence those around us.

On David Kato - Uneducated paranoia stared at me, when my morbid nature led me to conduct my weekly ritual of scanning the obituary of the Economist magazine. In the February 12th - 18th issue, it was reported that the Anglican pastor who was conducting David Kato’s funeral broke off to shout that he was worse than a beast. This is because animals could differentiate the two sexes. It reminded me of the funeral service of an eminent member of Singapore’s gay community, a few years back. The pastor from one of the “rah-rah” churches made adequate homophobic remarks for some members of the congregation to walk out.

When Fridae reported the censorship of The Kids Are All Right, a multi-Oscar award nominee, the importance of speaking up against unjustified censure became real.

The ingenuity Singapore’s Board of Film Censors on the limited licence deserves an Oscar in itself. This colourable permission affects the film’s revenue. Thus, future similar ventures for distributors will be deterred. The appeal board was of the opinion that it “normalises homosexual lifestyle”, if such a lifestyle exists.

My first reaction was to reach for my “Freedom of Expression” textbooks and log into my LexisNexis (research database). I wanted to check to what degree the censors can curb the media’s right to “offend, shock or disturb”. Such a right is needed to promote pluralism and tolerance. These are two concepts which Singapore is founded on.

Given that the film has been classified for adults above 21 years old (an age older than the legal age for signing contracts and acting as directors of companies), can the aim of limiting access be considered legitimate? If yes, is the action proportionate to this aim?

Firstly, the aim can hardly be said to be legitimate. The guideline against “normalisation of homosexual lifestyle” is discriminatory. It is not only unconstitutional, it is offensive. It is branding LGBTQs as abnormal people with abnormal lives. There is no pressing social need for such branding, in a democracy.

Let us give the aim the benefit of doubt and presume that it is legitimate. The criterion of proportionality is still not fulfilled. The measure is disproportionate, if not disconnected, to the aim.

Since the film is classified for those above 21 years and above only, the minors are shielded from the “normalisation of abnormal homosexual lifestyle”. The only impact of limiting the film to one copy is on profitability. It serves only as a warning signal to the film distributors against bringing in such films, in future. Thus, the “chilling effect” on our freedom of expression is undeniable.

Four years of LGBTQ activism, after s377A awakened me to the degree which homophobia exists in Singapore, taught me to take it cool. In Singapore, as in many societies, the law is merely one part of the equation. Rather than challenging the Board of Film Censors’ in court, let us explore something more innovative. How about drafting our wills creatively?

Not having studied sociology, I reached out for my first love. What better writer than Austen for inspiration on social observations. The opening chapter in Emma where a wedding was described as a funeral brought much mirth and got me thinking. Chapter 4 which observes that human nature is generally well disposed towards people when they marry or die sealed my conviction.

Therefore, we should use our deaths as much as we use our lives to better the lot of those we leave behind. Both our happiness and grief can move mountains. Like “Meng Jiangnu” (孟姜女) who cried down the Great Wall, the legacy of our love could be stronger than when we are alive.

With this in mind, I have drafted some model clauses for us to leave behind in our wills. If enough people pick it up, clauses against or censoring "normalisation of homosexual lifestyle" will become abnormal.

If you care for your partner, LGBTQ child, siblings and friends, use one of the clauses below. Though not having any legal effect, this is a lasting way to pronounce our care and love. Is this not the best legacy on how we loved and led our lives? 

PRECEDENTS/MODEL CLAUSES

Please note that: 

i. These precedents or model clauses are mere declarations. They have no legal effect. As they are samples, they can and should be modified to suit particular needs.

ii. These clauses are most useful when the persons they are directed at are also beneficiaries of the estate, be it a token gift e.g. a ring or collection of Madonna CDs.

iii. Those in common law jurisdictions like Hong Kong, Malaysia, India, Bahamas, Barbados and Jamaica should try to use them. References to the law should be modified. 

1. Testator who is in Same Sex Relationship 

(#). DESIRE

It is my desire that my mother, father, sister and other members of my family consider and treat my partner, [name of partner], as they would with a spouse I am legally married to, regardless of:

(a) the existence or abolition of Section 12(1), Women’s Charter; and

(b) the state of legal recognition on same sex marriages in Singapore. 

2. Testator who is Single (Male)

 (#) DESIRE 

I thank my [parents, brothers, sisters], [__] (delete and insert names, where applicable) for having embraced me and my same sex attraction and not brand me as a criminal like the Singapore Parliament in October 2007. They have likewise embraced my friends. 

It is my desire that they continue to embrace my friends regardless of race, language, religion, sexual orientation or gender identity. Further, should there be any civil action to abolish section 377A, Penal Code, it is my desire that they lend they support where it is legal and practical to do so. 

3. Testator who is Single (Female) 

(#) DESIRE

I thank my [parents, brothers, sisters], [__] (delete and insert names, where applicable) for having embraced my same sex attraction and me. Though the laws of Singapore have not branded me as a criminal, like section 377A, Penal Code, there are those in society who have. They have likewise embraced my friends. 

It is my desire that they continue to embrace my friends regardless of race, language, religion, sexual orientation or gender identity. Further, should there be any civil action to abolish section 377A, Penal Code, it is my desire that they lend they support where it is legal and practical to do so.

4. Testator who is Parent of LGBTQ children

(#) DESIRE

I have always treated [________] (name of child or names of children) like any other human being and embraced [his or her] [same sex preference or gender identity](delete where appropriate). I have also taught my other children [________________] (names) to do likewise.

It is my desire that my children and other members of family continue to love and care for each other regardless of their [sexual preference or gender identity]. Should [______] have a partner, I would like [him or her] to be treated like a legally married spouse, regardless of:

(a) the existence or abolition of Section 12(1), Women’s Charter; and

(b) the state of legal recognition on same sex marriages in Singapore

because I know it will make [_______] happier.

5. Testator who is an LGBTQ Parent

(#) DESIRE 

I thank my children, [___________] (insert names), for giving me the joy of parenthood. I have always tried to raise [him, her or them] (delete where appropriate) with values which embrace pluralism and tolerance towards differences. I thank and love them for their courage in acknowledging and accepting their same sex parents with their friends.

It is my desire that [_________] (insert names) think about me each time they see discriminatory and unjust actions. In so far as it is legal and practical, I desire that they stand up and/or speak up against such wrongful acts. 

6. Straight Testator with LGBTQ Sibling

(#) DESIRE 

I thank [_______](name) for being my [brother or sister] (delete where appropriate). I have embraced your [sexual preference or gender identity] [ever since you told me or even before you told me] (delete where appropriate). 

It is my desire that you continue being truthful to yourself and keep your chin-up for being who you are. Do not let discriminatory laws, actions and remarks deplete your self-worth. Think about how much I love and care for you whenever they arise.

7. LGBTQ Testator to his or her Friends

(#) DESIRE

I thank [___________] (names) for being a good friend. You have always embraced my [same sex preference or gender identity] (delete where appropriate) and stood by me.

It is my desire that [_________] (insert names) think about me each time [he, her or they] see(s) discriminatory and unjust actions. In so far as it is legal and practical, I desire that [he, she, they] stand up and/or speak up against such wrongful activities, in the same manner as [he, she or they] would have I am been alive.

Without love, the Taj Mahal is but a yellowed marble building testifying to acid rain and environmental decay. Without freeing the slaves, the Lincoln Memorial is but a marbled building known for having adopted the reflecting ponds of Arabic architecture. Without his “San Ming Tzu Yi”, the Sun Yat Sun Memorial is but a white elephant of Kuo Ming Tang’s political debt.

A will is very important document. It reflects who and how we loved. It reflects our value and beliefs. Eighty per cent of my clients who claim that they want a simple will have a long list of considerations and made changes to their initial instructions. Instead of just thinking about property and assets, you should also think of souvenirs and memories.

As such, I entreat you to imbibe your wills with loves, values and beliefs. Hopefully, by adopting one of the suggested clauses, it will bear more meaning for you, your beneficiaries and all those who touched you.

If you are not out of the closet, consider coming out in your will. Just remember, when you see a solicitor to draft your will, all information divulged are privileged and confidential. There are non-lawyers who do the same. I do not know if they are governed by any laws or professional codes of conduct.

I had three events in March. Though the workshop on compulsory licensing of “Plavix”, an anti-coagulant drug for cardio-vascular problems, has been cancelled, it still leaves two. One of them is to judge the Price Media Law Moot Competition in Oxford. Therefore, I may not be able to write anything for March.

Until April, I dare you all to watch something which “normalises abnormal homosexual lifestyle”, The Kids are All Right. In the cinema – support the distributor. We need more of such films!

Bon Courage!

George Hwang

The Lawyer Is In is a monthly column. In the columns, George Hwang will answer questions posed by readers on subjects such as personal and civil rights, workplace issues, discrimination, immigration, sexuality, lasting power of attorney and estate planning. To submit a question, email editor@fridae.com. Responses will be made by placing your question (without identifying you) in an upcoming column, and answering it there. We regret that questions cannot be answered privately.

Singapore

Reader's Comments

1. 2011-02-26 06:30  
Bravo!
2. 2011-02-26 12:12  
I suppose Singapore has an English system. One thing to remember is that if you don't make a will, then you are intestate and there are automatic places where your property goes. The law of intestasy does not recognise same sex partners. Generally your siblings or parents will get all your stuff.

I have always had a will where my partner gets everything even though I am not intending to die just to make sure my partners is not left high and drive. You can have what are called mutual wills which is what most hetros do.

As a tired old hack one thing I have noticed is that the wills people 'do' themselves seem to end up in court more frequently. Sentimental statements are fine but I would be very careful about expressing 'emotion' in a will. Wills are about what happens to your stuff after you die. I am not touting for business but I would strongly recommend getting a lawyer to do any will. The problem with us is that there isn't a cultural or legal tradition that supports where dead gay money and property goes (ie Parents to children). In Sydney, there has been and will be more, very nasty fights when wealthy men die and the families come out of the wood work about who gets the terrace in Paddington.
Comment #3 was deleted by its author on 2011-03-03 19:04
4. 2011-02-27 06:26  
I was trying to be constuctive but the article does not makes much sense.
5. 2011-02-27 10:03  
i have three registered foster sons according to family law. they do not qualify for legal rights per se but in my will i just name them in full name with their passport numbers and note the amount or type of inheritance left to each one. To avoid the often "fights" among relatives, I have informed my other family members of this clause in the will and told the sons, "you all get something and it is the same for all three". There is no sentimental statement in the will by the way. I should say this will is registered under US law. Hope this is helpful.
6. 2011-02-27 10:46  
Very sound advice that I have been given by lawyers with a lot of experience is 'Don't exclude people' or try and control from the grave. Most places have mechanisms to challenge wills and giving a few consolation prizes to relations as MichaelAsia does is a very good idea. This is in fact a very important topic as gay men are richer. My dilemma is that I want to principally make sure my partner is looked after when I fall off the roundabout but would like my neices and nephew to get something. But then my partner's family should get something as the assets are 'our'. You can do this by setting ups trusts and life estates for property but it all becomes rather complicated.

The starting point is always 'make a will'.
7. 2011-02-27 13:08  
Hairyaussie, if you can do a better ... or play a complementary role ... by all means ... contribute! ... stop complaining! ... we need more articles like this ... and given the fact the little that is made available to us online, i do not mind wordy and sometimes grammatically wronged sentences ...

the whole point is ... this reach out to people ... why not you write something for a change ? something that benefits, informs and encourages, perhaps ?

and ... "I've noticeD ... "

Ken
Comment edited on 2011-02-27 13:11:01
Comment #8 was deleted by its author on 2011-02-28 20:29
Comment #9 was deleted by its author on 2011-03-03 19:04
10. 2011-02-27 22:24  
please...we don't have room for people seeking cheap publicity and to promote their English tuition classes....
11. 2011-02-28 01:54  
helpED ... follows already ...

its ... should be " it is "

you should probably start learning Chinese ... most of us are multilingual here ...

this is Ken, not Sir ... and i am not your dear ...
12. 2011-02-28 04:25  
Dear No. 6:

Thanks for your constructive comments and advice. Some years ago, like my parents, I set up (in the US) a Trust. It cost me $ 1,000 as I recall but worth the money. I have it updated every so often as needed. In the US, this is a 24 hour no questions asked, way to almost immediately after death, to be able to transfer inherited assets to those named in a will without paying any inheritance taxes. I do not know which other countries have this mechanism but it is very useful. Most any lawyer can set up a Trust in the US, in fact, the Para Legal does all the work usually and the Lawyer just signs it. I think in such stores as Staples or Mail Boxes in the US or on line, there are standard formats for legal trusts as well and probably a person can just fill in the blanks in the form and have a lawyer sign and register it with the court to be valid.
Rather depressing to discuss these matters but the alternative to not planning for death at some point, is really destructive to those that live after. Such as needless paying of inheritance taxes and long delays in inheritance when one has to do things, like...pay for the funeral right away!
13. 2011-02-28 13:27  
Australians should be rather careful about criticising other people's second or third language skills as most of us are still struggling with our native tongue (and not in sexy way). Chinese people from my experience are usually quite good at languages (better than the Japanese and Koreans).

If anything I find Singaporeans a little over educated which is better than the reverse but embarassing when they know who Caliban is the Tempest and I didn't.

Further, our lawyer at large here is likely not getting paid and as we say down under 'having a go.'
Comment #14 was deleted by its author on 2011-03-03 19:05
15. 2011-03-05 23:02  
How I agree with Ken34my ...that HarrieAussie aka so called English teacher is really attention seeking plus such a pot calling kettle black ...stop sending me message telling me about my spelling btw this is not forum to seek young Asians ...eeewww ...please focus on the topic being discuss ...if you can contribute something relevant ...get the hell out of the forum ...

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