Will Law Malaysia

Let’s begin by defining what a Will is; it is basically a written legal document that has been signed by the testator in the presence of a witness or witnesses. The provisions that are found in the will shall only take effect upon the death of the testator. It will touch upon matters such as the distribution the deceased’s property in accordance with their directions as well as who is to administer their estate. These directions however are subjected to certain limitations that have been imposed by law.

The Will must be in written form and no other form shall be accepted such as in the form of a cassette or video tapes except for a privileged Will. A Will can also be made using any language. The will does not need to be stamped and no form of attestation or acknowledgement will be necessary.

What is considered as a privileged will and who are entitled to make such wills?

A privileged as mentioned earlier basically means that it does not have to be in writing, this also means that it can be done orally by a person and will not require the signature of the testator. Those that are allowed to make a Privileged Will are soldiers who are in actual military service or that of mariners or seamen of the naval forces who are serving out in the sea. Even so the privileged Will shall become null and void, and one (1) month after the testator is still alive, ceases to become a soldier in actual military service or a seaman or mariner serving in the sea, the Will becomes canceled.

Who are eligible to make a Will?

A Will is only valid if it is made by a person that is 18 years old and above. The person does not only have to be 18 years old but they are also required to be sound of mind and mentally capable of understanding the nature of why the Will was made in the first place as well as the terms that are found in the Will. These requirements are exempted if that particular person is a mariner or seaman serving in the sea or a soldier in actual military service.

Is a lawyer required before a Will can be made?

While a Will can still be made without the services of a lawyer, you need to be aware that the homemade Will may be invalid and ineffective in a court of law. This is because all the Wills that are made must be in accordance with the Wills Act 1959. There are also necessary formalities and rules in regards to the executors of the will, beneficiaries and the witnesses that these groups of people may not be aware of and requires explanation. The simple mistakes which could have been avoided could make the will invalid as well as the beneficiaries and executors costly and unnecessary distress and litigation. So it is best advisable that you consult your lawyer in this particular case in order that you do not experience such problems in the future, as the lawyers will be able to draw up a proper Will for you.

Will a witness be required for the signing of a Will?

Yes, you will be required to have a witness present for the signing of the Will. Once the Will has been finalized, the testator will have to sign at the end or at the foot of the Will and then it must be witnesses by at least two people who are the beneficiaries of the will and they cannot be the husbands or the wives of the beneficiaries. Those that can be the witness of the will can be the executor who is not the beneficiary of the will or a wife or husband of any beneficiary. The witnesses of the signing of the will are only required to do just that and they do not have to know the contents of the will.

What is the relevant information that I should include in a Will?

Unless a Will has been made in writing and has been executed in accordance with the following requirements, that particular Will is not valid and the requirements includes;

• That the intention of the signature by the testator is to give the give to the will.
• That each of the witness while in the presence of the testator either acknowledges the signature of the testator or that they attest to the testator’s signature or the testator’s acknowledgment of the signature and signs the will. However this does not necessarily have to been in the presence of the other witnesses.
• The testator has signed at the end of the foot of the will.
• That the signature was made or acknowledged by the testator in the presence by two or more witnesses at the same time.

Other information that you should have in your Will includes;

• A description of the assets that you would want to include in your will that the beneficiary can inherit.
• The alternate beneficiaries name in the event that the original beneficiary passes away at the same time or before the testator does.
• In the event there are minors involved then you should also include the name of the guardian for the children. In the event that the guardian of your choice is unable or unwilling to act then it is best advisable that you name an alternate guardian in case that happens.
• Signatures that includes the testator as well as the witnesses.
• The testator’s name and the place of where they are currently residing.
• The names of the beneficiaries to whom you are intending to give your assets and property to as well as the portions in which they would inherit.
• The names of the person or persons that you would want to nominate as the executor(s).

You will be required to name at least 1 and the maximum of 4 executors named in your will. If you have named minors as your beneficiary who means that they are below the age of 18 years old, then you will be required to name at least 2 executors.

The executor in this context should be at least 21 years old and they should do not need to be the beneficiary. They should also have the willingness as well as the capabilities to act as an executor. The Trust Corporations is an option which you can consider if you are experiencing difficulties in appointing an executor.

In the Will that you have made you can also specify which of the beneficiary will inherit which property or asset. You can also include the names of the beneficiaries to the assets that they will be inheriting despite the fact that the assets do not belong to you at the time that you have made the Will.

As mentioned before the executors that you have named will act as the trustee to hold any of the assets to either invest or use the money in any way that can benefit the minors in which you already have named in the Will.

If the assets that you intend to pass on to the beneficiaries have an outstanding loan with the bank then the beneficiary would have to settle the loan with the bank before they will be able to inherit the property. You can include this matter in the Will and it can be taken care of by including a paragraph in the Will that states that the outstanding loan will be paid for using the estate or that you wish to consider taking up an insurance such as a mortgage insurance.

While all this information are important when you are drafting up a Will, the most important details that you should never leave out is the naming of the guardians for the children, the beneficiaries and the executors.

In what type of situation shall a Will not work?

You should be aware that there are certain situations where having a will won’t necessarily change anything. This is because there are a few types of assets which are not part of your estate and as such you will not be able to will these particular assets away. Besides a Will can only control assets that are in your name and that is part of your estate so items such as life insurance, EPF monies and retirements benefits cannot be inherited by the beneficiaries even if you include them in the Will.

Regardless of what you state in the Will, if you have already made a nomination under the Employees Provident Fund Act 1951 for your EPF monies, then your nominees will be entitled to the EPF monies that you have contributed.
According to Section 166 of the Insurance Act 1996, a trust will be created on your behalf if you have a life insurance policy and have already made a nomination. This means that the Will that you made will not bind the insurance and the insurance will no longer form any part of your estate.

Another item that is also considered a separate legal entity is your company’s share which means that these shares will not pass under the Will that you have made. As there might be restrictions on the transfer of these particular shares, it is best that you mention it in the Memorandum and Articles of Association of your company on how to deal with this particular matter.

If the property that you hold are joint ownerships and the mandate gives the right of survivorship, then you cannot deal with this through the drafting of a Will.

Native items or “Harta Pusaka” in the Malay language cannot be willed away and these includes the old jars, weapons and other ancestral properties, however a native will still be able to draw up a will but they need to make sure that it does not go against the customary laws of that particular tribe and everyone that is involved agrees to the context of the Will.

It will be inadvisable for you to include information such as the way in which you want to be buried, what you would want to do with your organs or other information that requires immediate attention after you have passes away in the Will. This is because no one will look at the will until after the funeral and burial, so for example if you have included instructions for the disposition of your body it will most likely be too late for your loved ones to do anything about it.

Is it possible for me to change the content of my Will?

If you have already made a will, then you can change the contents of your will from time to time throughout your lifetime. You should take note that if you want to alter anything in the will then you should never attempt to change the will be deleting or omitting, adding or attaching anything on to the Will. The changes should be made properly or the Will shall become ineffective or invalid.

According to the Wills Act 1959, there shall be no alteration, obliteration or other interlineations made to a Will after is has been executed shall remain valid or will have any form of effect so far as the words or effect of the Will before the alteration are not apparent. This is of course unless the alteration or the memorandum that was made refers to the alteration and has been written on the Will, which has been executed in a manner in which a Will is required before it can be executed.

It is advisable that if you want to make new changes to the Will that you should always rewrite or draws up a new Will. You should not have to worry as the new Will shall automatically supersede the previous one that you made. And you should also review your Will if there have been changes that you consider will affect the Will, that you or anyone that has been mentioned in the Will changes their name or of the executor that you named originally becomes unsuitable or unfit for the task that they have been given or if the pass away for the testator. In fact it would be in your best interest to review your will on a regular basis.

When can a Will be considered as being revoked?

No Will or any part of it will be revocable unless;

• Under Section 14 of the Wills Act 1959, that the testator had the intention of the revoking their Will either by tearing, burning or any other method that involves the destroying of the Will. This should also be done in the presence of other people so that they can act as the witness.
• Under Section 12 of the Wills Act 1959, when the testator has married then the Will that they made before the marriage will be revoked and become null and void which means that you will need to draft up a new Will.
• If a person converts to the Muslim faith then the Will that they made previously shall become null and void as in such cases the distribution of the property of a Muslim is governed by the Islamic Law.
• According to Section 14 of the Wills Act 1959, the context located in the Will can be revoked if it is done in a manner in which it is required to be executed that includes by some form of writing that declares the intention to revoke the Will.

If there is alteration in such circumstances then no Will shall be revoked on such presumptions of an intention based on these presumptions. You should also take note that a divorce will not revoke the contents of the Will as the Will shall speak from the date that it was drafted unless you have included a contrary intention in the Will if this situation ever arises.

Are Wills that are drafted aboard valid in Malaysia?

According to Section 27 of the Wills Act 1959, a Will that was made outside of Malaysia shall be deemed valid only if it is made in writing or is a privileged Will. The Will should also be executed in a manner required by the law of the place that is was made, the law of the testator’s domicile at the time of their death, according to that of the Wills Act 1959 or the law of the testator’s domicile at the time of the execution of the Will.

Where should a Will be kept?

After you have drafted up your Will and it has been properly executed then you should keep it from being destroyed either deliberately or accidentally and this means the Will should be kept in a safe place from floods, burglary, fires and from becoming loss. While it is important that you keep your Will from becoming misplaced or destroyed, it is also important that the Will can be accessible to you family members, close relatives or friends in the event that you pass away. The Will without a doubt is a private document; however your family members and the executors should not be left out in the dark of the existence of the Will as well as the place that it is kept.

There are a few examples on how you should keep your Will, for example you can keep it along with your personal records at home where it will be safe from any possible tampering, you can choose to deliver it to the executor or if you want you can provide information to your lawyer on the location of the original Will in the event that you pass away. Or you can just let your lawyer look after the Will, but you should make sure that you give your executors the lawyer’s contact information so that they would not have to search high and low for the Will should you pass away.

However one of the most important step yet the one that is most neglected when making such plans is to leave a letter of final instructions for your family members or anyone that you have named as your beneficiary in the Will. No formal requirements are needed in making such a letter and you can leave the letter either with your lawyer or executor.

The main objective of making such a letter is to provide the beneficiaries will information such as instructions in terms of the location of the documents such as bank accounts and marriage records, the detailed inventory of the assets, the location of the will and other such information. Often these letters will also include wishes and hopes that you want to express privately which you may be unable to do so as the Will shall become public record.

Does anyone have the right to vary my Will?

While you are able to name the beneficiaries of your choice in the Will, there are still certain people who can apply under the Inheritance (Family Provision) Act 1971 for the reasonable provisions to be made. This will usually happen when there is nothing or there have been insufficient amounts that have been left for them under the Will.

People who can make such claims include;

• A daughter who has not been married yet or is incapable of taking caring of themselves because of physical or mental disabilities.
• An infant or anyone else that is below the age of 21.
• A son who has not been married yet or is incapable of taking caring of themselves because of physical or mental disabilities.
• The wife or husband, depending on the testator of the Will.

You should also take note that a child that you have adopted legally is considered as your son or daughter according to the Inheritance (Family Provision) Act 1971. While you may be eligible for making such claims, you need to be aware that the decision shall be left with the courts basing it on the merits of each of the case.

What will happen if I do not make a Will?

Whether you realize it or not, everyone has a will. When one dies and they do not have a individual Will that reflects their own wishes, then they will automatically provide the state law with the power to execute the wishes that reflects the legislative’s conception of the probable objectives of the deceased.

So this means that in the event that you pass away without making a Will, then your assets will be distributed according to the rules of intestacy that have been laid down by the Distribution Act 1958 for Sarawak and West Malaysia while inhabitants of Sabah will manage the situation in accordance with the Succession Ordinance 1968.

While not as thriftily managed as that of a Will that is drafted by you, the intestacy laws will have your property pass down to your survivors according to the rules of intestacy. When you have drafted up your own Will, it is the executors that administer and distribute the assets, while cases where there is no will then the task is left with the administrator or administratix. Despite the differences in the title, nevertheless they still perform the same tasks.

If the situation arises where you have not drafted up a Will and you are not married nor do have any next-of-kin, then your assets will go to the Malaysian government. If you own assets with the gross value of less than or equal to the amount of RM600, 000, then you assets will be distributed;

• For either partly or wholly immovable assets by the District Land Administrator according to the Small Estate (Distribution) Act 1955. This is where a Distribution Order will be issued and no guarantors or sureties will be required.
• As for movable assets only, the will be administered by Amanah Rakyat Berhas according to Section 17 of the Public Trust Corporation Act 1995, who will be able to administer your estate without the need for sureties or guarantors.

The beneficiaries will be required to apply to the High Court for Letters of Administration if the assets have a gross value to exceed the amount of RM600, 000.

• Priority will be given to the beneficiary as compared to the other beneficiary in filing for the petition for Letters of Administration.
• As for the other beneficiaries, they will be required to sign the Renunciation of Administration letter to renounce their right to the petition. If they refuse to sign the petition then they will be served a notice when the petition comes up for hearing or if they choose they can object to the petition which will then be treated as a contentious one.
• For the beneficiaries that fail to appear at the hearing then it will be deemed that they have renounced their rights to the administration.
• Before the Letter of Administration can be extracted, an administration bond will be required where the bond is the form of security of the due administration of the estate of the deceased. This basically means that in order for you to sign the bond, you will be required to provide two guarantors or sureties with unencumbered assets that is equivalent to the value of your estate.
• In this case the sureties or the guarantors will have the responsibility to ensure that the accounts have been properly rendered while the property has been distributed properly.
• Whether a court order should be granted in order to decrease the amount of bond or reduce the number of sureties or dispense with them is at the discretion of the courts. Sureties can be dispensed with this if the administrator is the sole beneficiary or if a trust corporation has been appointed as the administrator.
• The sureties will have to bear the responsibility of refunding the loss if the administrator absconds with the estate.

The administrator of the estate is usually the one that inherits the estate and they will also be the one that collects your assets and settle your estate. If minors are involved in such circumstances they the courts will appoint a guardian to look after the estates that they have inherited until they turn the legal age of 18 years old where they will be able to manage the estates by themselves. If the guardian wants to use any of the money for the purposes of the children’s education or maintenance, they will then need to obtain the approval of the court each time they intend to withdraw or use the money.

As for an illegitimate child, they will not be entitled to the claims from the estate of the father however they will be able to make claims for the mother’s estate provided that she does not have any other legitimate children. In the eyes of the law only the legal wife shall be entitled to the claims from the estate of the husband while the common law wife shall not be entitled to any of the husband’s estate.

If you are not familiar with the rule and regulations, then it will be best to consult a lawyer on this matter as they may be able to advise you on such matters as well as on how to apply for it. A Will can come in handy if you have intentions about providing for your family members, friends or even charity after you have passes away. This is because if you have a large estate and you do not have a Will then disastrous litigation may follow after one’s death or if you do have a Will and your estate is small then dividing it further to the various survivors may not be the wisest of choice as the portions are too small to help anyone. So these are the factors that you may need to take into consideration when you draft up a Will.

What happens during common disasters?

Where the husband and wife leave each of their estates to each other on common situations, and in the unfortunate event that both of them passes away in the same accident this may potentially cause problems in terms of the of the order in which they have died.

According to the Distribution Act 1958, the estate for the first to die will pass to the survivor. And upon the survivor’s death the family property will pass under the survivor’s will or under any of the applicable intestacy rule.

Where they have been survived by the children, then it is the children who shall be entitled to the estate. However if the situation arises where there are no children or if they had died in the same accident as the parents or by some other means, then it will set the stage for a disastrous struggle between both the husband’s relatives as well as the wife’s especially when the order of the death of the children are uncertain.

So for example if both the husband and the wife are involved in an accident that kills the husband at the scene of the accident while the wife dies from the fatal injuries a few hours later, then the husband’s property will be passed on to the wife and at the death of the wife, the property will pass on to the wife’s relatives. As for the husband’s relatives they will basically receive nothing despite the fact that the property that was owned by the wife at the time of her death comes largely from the husband’s or his family’s side.

This is where a proper Will can be helpful in avoiding situations such as bitter conflicts between relatives on who has the right to the properties of the deceased as well as expensive litigations. Just make sure that the Will contains the clause for the common disasters that the states the distribution of the family assets in the event of the death that results from the same accident or simultaneous deaths.

How is the estate of an intestate distributed?

West Malaysia and Sarawak

No spouse, issue and parents (According to priority)

Who should be the guardian of the minors?

According to both section 5 and 6 of the Guardianship of Infants Act 1961, where the child has no surviving mother then it will be deemed that the father shall be the guardian of the child itself as well the properties. If the situation was the other way around and the child is without a father then the mother shall be the guardian of the child and the property. However, if the situation arises where the child has lost both of their parents then it could be dealt with in two types of situations;

• If a guardian has been appointed in either one of the parent’s will, then it will be deemed that the particular person shall become the child’s guardian according to Section 7 of the Guardianship of Infants Act 1961.
• If there were no testamentary guardian that was appointed then the Court according to Section 8 of the Guardianship of Infants Act 1961, will appoint a guardian for the particular child and the property or either one of them.

Should I include my foreign assets in the Will?

For foreign assets, they are classified in two categories which include property that is movable and immovable. If you have foreign assets that are considered as moveable properties then the law of your domicile applies. However the lex situs shall apply in cases where you have assets that are properties are immovable. If the situation arises where you have both the movable and immovable foreign assets then it would be advisable that you make a local Will as well as a Will that is applicable for the immovable properties in where it is located. This is because the administration of the estate will be more efficient as the executor of the Will where it does not have to apply for the Grant of Probate from the Malaysian Court and then have it reseal in the court of the country where the testator owns the property. So with a Will that is for the specific purpose, the Will can then be admitted for the Probate in the foreign country without having the need to extract the Grant of Probate from the Malaysian Courts.