What is a Will?
A will is ‘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 … ‘, as defined under the Wills Act 1959 (Act 346).
Such ‘property or other matters’ of the testator may consist of his real or personal properties, the guardianship and custody of any child, and even his charitable causes, just to name a few.
‘Testator‘ basically refers to a person who has made a will. And, all money and property owned by the testator at his death are called his ‘estate‘.
Writing a will is no doubt important and necessary due to it being the simplest and most practical way to plan our estate upon our death as expounded in our earlier article on An Overview of Estate Planning in Malaysia.
Without a will, our estate will have to be distributed in accordance to the Distribution Act 1958, as elaborated in Distribution of Estate under Distribution Act 1958, which often convoluted by technicalities.
Who Could Assist You in Writing Your Own Will?
There are many professional will writers, will writing companies (some of which are banks as well as Public Trust Corporation), and law firms like us to assist you in writing your own will.
In fact, one may even write his or her own will by referring to such legal or practical guides on writing your own will available in the bookshops to ensure compliance with the formalities as stated in the Wills Act 1959 (Act 346), as what my parents in law did.
The purpose of this article is to share some basic knowledge of writing a will in Malaysia.
In Malaysia, a person writing a will must comply with the formalities stated in Section 5 of the Wills Act 1959, summarized as follows, in order for the will to be valid and effective:-
(a) the will maker must be at least 18 years old;
(b) he/she must be of sound mind;
(c) the will must be in writing;
(d) signed by the will maker in the presence of at least 2 witnesses; and
(e) the 2 witnesses must then sign in the presence of each other and the will maker.
It must be remembered that the witnesses or the witnesses’ spouse must not be the beneficiaries under the will because if this is so, the gift to the beneficiaries under the will shall be void against them.
However, an executor is not prohibited to be a beneficiary under the will.
A will does not need to be stamped in order for it to be valid. We hope this common misconception can be dispelled once and for all here.
In the event that you need to vary the contents of the will due to the purchase of new property, divorce, remarried, and so on, you can either write a new will or to execute a codicil.
Do note that unless there is “In Contemplation of Marriage” clause in your will, your previous will automatically be revoked subsequent to your marriage.
The formalities to execute a valid codicil shall be the same as in executing a will as discussed above, i.e. in writing, signed and attested by 2 witnesses.
It is important to note that a will can be challenged in either of the following circumstances:-
(a) the content or wording was written ambiguously,
(b) the will maker lack testamentary capacity, or
(c) the will be written under suspicious circumstances.
If a will was successfully challenged by an interested party, the court may declare it as invalid.
In that event, the disposition of the estate will have to be distributed in accordance with the Distribution Act 1958.
Basic Contents of a Will
It is only sensible that writing a will be personalized according to the wishes of the will maker rather than in accordance to a template with modifications.
Having said that, the basic contents of a will should include the following:-
- Date – the date of writing the will;
- Name & NRIC No. – the name, address and national registration identity card’s number (‘NRIC No.‘) or passport number of the will maker;
- Last Will Clause – a declaration as to the last will and testament;
- Revocation Clause– a declaration to revoke the earlier will and codicil (if there is any);
- Appointment of Executor – a clause to appoint an executor/executors as well as another executor/executors in default of execution of the former (collectively known as the ‘Executor‘);
- Debts, Funeral and Testamentary Expenses – a direction to the Executor to settle such debts, funeral and testamentary expenses (It is important to also note that our estate, does not only comprise of assets but also our liabilities or debts accumulated during our lifetime);
- Distribution Clause – a clause containing the description of assets, whether specifically or generally, and the beneficiaries thereto. In the event of provisions for children, it is prudent to provide for both living children and children en ventre sa mere (i.e. children not yet born) to avoid rewriting of a will every time a child is born especially for the young couple.
- Appointment of Guardian – a clause to appoint a guardian or guardians of children until they attain 18 years old;
- Choice of Law Clause – a declaration that the will be construed in accordance to the laws of Malaysia;
- Residuary Estate Clause – a precautionary clause to deal with the residual of an estate, which includes the assets void against the beneficiary, assets void or lapse by the death of the beneficiary during the lifetime of the testator, assets missed out at the time of writing a will or acquired subsequently;
- Signature of Testator – at the end of the will; and
- Attestation Clause – there is no standard form of attestation clause required under the law as long as both witnesses sign at the end of the will with their names, NRIC No., and addresses stated clearly.
It is optional to put in an ‘executor indemnity’ clause because there is an existing provision to indemnify the executor as per Section 64(1) of the Probate and Administration Act 1959.
What Happened if the Beneficiary Dies during the Will Maker’s Lifetime?
As a general rule, such gift shall lapse or void by reason of the death of the beneficiary during the will maker’s lifetime by reason of such devise incapable of taking effect pursuant to Section 19 of Wills Act 1959.
The lapsed gift shall then be included into the will maker’s residuary estate and be dealt with in accordance to the residuary estate clause. Where there is no residuary clause, the residuary estate goes on to intestacy and be distributed under the Distribution Act 1958.
However, such devise shall not lapse if the beneficiary being the testator’s child or descendants, dies leaving issues, as per Section 25 of Wills Act 1959.
What Happened if the Beneficiary Dies After the Will Maker’s Death but Before the Will Executed or Received the Inheritance?
Fundamentally, a will carry into effect upon someone’s death.
Therefore, since the beneficiary survives the will maker’s death, the beneficiary shall be entitled to the estate under the will.
However, since the beneficiary now died, the estate of the beneficiary shall be entitled to the estate under the will instead, and be distributed according to the beneficiary’s will or intestacy.
Kindly refer to Probate and Estate Administration in Malaysia for more information on estate administration by the executor who assumes the official role of proving a will by applying for a grant of probate upon a testator passed away.
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