Understanding how to write a valid will is important especially if you want the property to be distributed according to your instructions.
Although most people are aware of what is a will, they are oblivious as to how to validly execute a will. In this article, we aim to breakdown the complexities of executing a valid will in Malaysia.
WHAT IS A WILL?
Definition of “Will” under the Wills Act, 1959.
A “Will” means a declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil and an appointment by will or by writing in the nature of a will in exercise of a power and also a disposition by will or testament of the guardianship, custody and tuition of any child.
A simpler definition of WILL
A document by which a person expresses his desire about the devolution and distribution of his property after his death. It has to be his last testament and if there be revocations only the final text is to be accepted. A will may also contain other declarations of the person’s desires as to what is to be done after he dies but it must depose of some property.
Other Important terms under the Wills Act Malaysia
TESTAMENT
An act by which a person directs the disposition of his properties to take effect after his death. Commonly however “will” and “testament” are considered synonymous.
TRUSTEE
One who holds legal little to property “in trust” for the benefit of another person and who is required to carry out specific duties with regard to the property. A trustee is a man who virtually is the owner of the property and may deal with it as its owner, subject only to an equitable obligation to account to some person to whom he stands in relation of trustee and who is his cestui que trust.
EXECUTOR
A person appointed by the testator to carry out the provisions of the will as the “legal personal representative” of the former after his death.
CESTUI QUE TRUST
The person for whose benefit or advantage property is held in trust and who is called beneficiary.
CODICIL
A supplement to a will, means an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will.
INTESTACY
To die without leaving a valid will; it is the situation of a person of property dying without having made a will.
WHY YOU NEED A WILL?
A simpler definition of WILL
You can bequeath (means to leave by will to another) your properties to the people you choose to take over your properties. Otherwise, if a person dies intestate, his property will be distributed in accordance with the Distribution Act, 1958 as amended in 1997.
Your beneficiaries will be able to receive your properties faster compared to the beneficiaries of people who died intestate. The beneficiaries of people who died intestate need to make a separate application to the High Court to distribute the immovable property of the Estate of the deceased in accordance with Section 60 (4) of the Probate & Administration Act, 1959 which provides:
“(4) An administrator may not, without the previous permission of the Court-
(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property situate in any State and for the time being vested in him; or
(b) lease any such property for a term exceeding five years.”
There will be less or no quarrels among the beneficiaries of the deceased as the Executors & Trustees of the Estate of the deceased and the shares of the various beneficiaries are expressly stated in the will.
HOW TO WRITE A VALID WILL IN MALAYSIA?
To write a valid will, you need to comply with the requirements under the Wills Act 1959:-
(i) “Will” can only be made by a person who has attained the age of majority i.e. 18 years.
(ii) “Will” must be in writing and signed by the testator or by some other person in his presence and by his direction;
(iii) There must be at least two witnesses to the Will.
(iv) The witnesses must not be beneficiaries of the Will;
(v) Executors can be witnesses to the Will;
(vi) It is advisable to make a fresh Will after marriage as generally a Will shall be deemed revoked in law by a person’s marriage.
CAN I WRITE MY OWN WILL?
Yes, you do not need a lawyer to write a Will as long as the requirements under the Wills Act, 1959 are complied with.
WHAT HAPPENS WHEN A PERSON DIES WITHOUT MAKING A WILL?
If you pass away without making a Will, your assets will be distributed according to the rules of intestacy as laid down in the Distribution Act, 1958.
If you died without making a Will, your Estate may be distributed to persons to whom you do not intend to give anything.
Furthermore, the people who will look after your Will are not of your choice. They are called “Administrators” if males and “Administratrixs” if females instead of Executors although they perform a similar task.
They have to apply to Court for “Letters of Administration” and the procedure is generally more complicated than in the case when you have a Will. For example, the administrators will have to provide two sureties (or guarantors) with unencumbered assets equivalent to the value of your Estate unless they obtain a Court Order dispensing with this.
If you have specific intentions abour providing for your family members, friends or a charity after your death, you should consider making a Will.
HOW TO EXECUTE A WILL IN MALAYSIA?
Appoint an Executor or Trustee
By law, you can appoint an adult that is 18 years or older to act as your executor or trustee. You can appoint one to four executors to administer your estate.
You can even name persons to step-in if the executors that you appointed predecease you or if they decided to renounce this duty.
Another option you can opt for is to appoint a trust company to act as your executor or trustee. If your will and testament is complex, it would generally be recommended that you approach a trust company to execute your will.
Informing the person you chose
I would highly recommend that you obtain the consent of the person that you selected to be your executor or trustee. It would be a waste if the executor which you appointed renouncese himself after a period of time.
OTHER MATTERS FOR WILL WRITING IN MALAYSIA
(i) A Will will only take effect upon a person’s death. As such, a testator can always make a new Will to replace the old will if he so wishes.
(ii) A Will need not be stamped.
(iii) There is no necessity to state the EPF monies in a Will if a testator has already made a nomination under the Employees Provident Fund Act.
(iv) Generally, muslims can dispose off or give away only one-third (1/3) of his Estate under a Will.
(v) A testator should review his Will if the executor dies or become unfit/ unsuitable to act or if there are other changes which will affect the Will for example change of beneficiaries, mode of distribution or change of assets.
(vi) Always let the Executors know where your Will is kept.
(vii) A soldier in actual military service, or a mariner or a seaman (naval forces) at sea, is entitled to make what is called a ‘PRIVILEGED WILL”.
(viii) A Privileged Will may be oral or in writing and need not be signed by the testator.
(ix) A Privileged Will becomes null upon expiry of one (1) month after the testator being still alive, ceases to be a soldier in actual military service or a mariner or seaman at sea.
(x) Do not change a Will by deleting or adding words to the existing Will. It is advisable to do a fresh Will to supercede the previous Will.