Many people know that a Will is invalid unless it is in writing and signed by the testator.
The signature must be made by the testator in the presence of two or more witnesses present at the same time, and, of course, each witness should then either attest the Will in the presence of the testator.
We often receive inquiries that such formal requirements (especially (1) in writing and (2) the signature must be made by the testator in the presence of two or more witnesses) for a valid Will may be difficult to achieve during the Covid-19 pandemic and whether there are any alternatives.
A Will must be in writing
At the moment, there are no alternatives are available to the legal requirement that a Will must be in writing which includes handwriting, typing, printing and there is no restriction as to the material on which a Will can be written or the language used.
Therefore, oral or video recorded (audio or audio-visual) statements will not suffice.
A Will must be signed
As far as the legal requirements go, a Will must be signed, as stated in the Wills Act 1959.
Some speculative arguments state that such formal requirements can be satisfied by an electronic Will viewed on-screen and executed electronically.
This is impermissible under the Wills Act 1959 which defines “signature” as either a handwritten signature or mark by the testator, remains the required standard in order to ensure a valid Will.
In the presence of two or more witnesses
The testator must sign a Will in the presence of two or more witnesses present at the same time.
‘Presence’ includes both physical and mental presence, but certainly not a virtual presence. According to the Wills Act 1959, witnessing by video conference is not possible as it meant that there was no physical presence of the witness.
During this Covid-19 pandemic period, there are people who required to be self-isolated, especially so during the Movement Control Order (MCO). It is difficult to meet such requirements during this period.
It is possible therefore to use more creative solutions by consulting a legal practitioner to allow a self-isolating testator to execute a valid Will.
Clearly, the execution of a Will at this time will be a priority for many clients noticing that life can be so fragile, unpredictable, and fickle.
Taking into account factors such as the pandemic situation, age, and state of their own health, perhaps everyone should act in a timely manner not only during this pandemic or some other disastrous situation to make their own Wills.
Making a Will is encouraged for its obvious benefits as follows:-
First and foremost, having a Will would hasten a testator’s assets to be effectively distributed upon his/her death as an application for grant of probate takes only about 1 month from the date of the testator’s death.
It is also important to know that not having a Will may lead to practical issues such as:-
- Without a Will, an estate will be distributed according to the law under the Distribution Act 1958 upon someone’s death, i.e. the law dictates the method of distribution of your estate (refer to our earlier articles on Probate and Administration in Malaysia: a self-help guide for dealing estate (without will).
- There will be a need for someone to apply to the High Court or Land Office (through the District Land Administrator) for a letter of administration, followed by a court order to distribute the estate according to the Distribution Act 1958 (‘DA 1958‘). And, the applicant must be someone agreed by all the beneficiaries and express consent is required by all beneficiaries.
- There will also be a need to produce two sureties by the Applicant.
- The period of time to complete the entire affairs of distribution from the time of death would take averagely 3 to 6 months’ time in the High Court. If one were to apply to the Land Office for a letter of administration, the entire affair may take at least 6 months on average.
About the Author:
Feel free to contact him if you have any queries.