The 101 on Wills in Malaysia

Do you have a will? If you don’t currently have one, your loved ones may not receive the assets you intended to leave them in the event of your death. Here are some information on wills that you may want to read up on.

WHAT IS A WILL?

A will is a document that sets forth your wishes regarding the distribution of your assets and the rights to care for any minor children. In order for a will to be legally effective, i.e. to be duly executed as you have wished, there are several requirements and steps to be accorded with.

The followings are the 101 on Wills in Malaysia:-

CONSTITUTION OF A VALID WILL

Under the Wills Act 1959, there are several requirements that needs to be adhered to in order for a will to be valid:

  1. The person making the will (the Testator) must be of sound mind;
  2. The Testator must be 18 years and above;
  3. The will must be made in writing i.e. it can be handwritten or typed out; and
  4. The will must be signed by the Testator together with two or more witnesses present at the same time. The witnesses cannot be beneficiaries of the will.

WHAT IS “SOUND MIND”?

The testator will be deemed to be of sound mind if, at the time of writing the will, is able to (i) choose the beneficiaries to his will voluntarily, (ii) have full recollection of all the properties he so choose to bequeath in the will, and (iii) fully understand the potential consequences of the execution of his will.

HOW DO YOU EXECUTE A VALID WILL?

It all depends if the testator appoints executors in his will. If there is, the court will grant the executor a grant of probate for them to execute the testator’s wishes. If there is no executor, the court will appoint an administrator instead. Both are called personal representatives.

CAN A VALID WILL BE REVOKED?

Like any legal document, a valid will can be revoked. These are the four main circumstances for will revocation:

1. Marriage

A will is revoked through marriage or re-marriage, unless the will is made in contemplation of a particular marriage. Divorce or separation does not revoke a will

2. Destruction

A will is revoked when it is physically destroyed by the testator with the intention of revoking it. Accidental or malicious destruction by a third party does not constitute revocation.

3. A later will

A subsequent will would automatically revoke an earlier one, regardless of whether a revocation clause is included in the later will. The testator can also revoke a will by making a written statement of his intention, signed in the presence of 2 witnesses.

4. Conversion to Islam

A will is revoked when a non-Muslim person converts to Islam because distribution of his/her estate will automatically follow the Faraid distribution.

WHAT HAPPENS IF YOU PASS AWAY WITHOUT LEAVING A WILL?

In a case of intestacy, the court will appoint administrator(s) to settle all the debts and liabilities under your name. The remainder of the estate will then be distributed to the family members who survived you in accordance to Section 6 of the Distribution Act 1958. Example of such distribution are as follows:

  1. Leaving a spouse only: all to spouse;
  2. Leaving children only: all to children;
  3. Leaving parents only: all to parents;
  4. Leaving spouse and children: 1/3 to spouse and 2/3 to children;
  5. Leaving spouse, children and parents: 1/2 to children, 1/4 to spouse and 1/4 to parents;
  6. Leaving spouse and parents: 1/2 to spouse and 1/2 to parents; and
  7. Leaving children and parents: 2/3 to children and 1/3 to parents;

Making a will may not be the simplest of task, but it is an essential one. So if you intended to prepare or revise a will, start by making an inventory list of all your assets and liabilities. You could also appoint a personal representative to help with the inventory list. A personal representative of a testator is known as an executor, while a personal representative of a deceased who died without a will is called an administrator. It would also be recommended for you to consult a lawyer for will preparation to ensure that full legal effect will be given to your will upon your passing.

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