MahWengKwai & Associates offers you a personalised will writing service. Our lawyers will answer your questions, advise you and help you to write your will to suit your circumstances and your wishes. If you so require, you may also deposit your original will with us for safe-keeping.
For your benefit, we have set out below our answers to some frequently asked questions regarding wills for non-Muslims in peninsular Malaysia. We hope you find the information helpful.
In simple terms, a will is a document which contains a person’s intentions on the distribution of his or her assets at death.
Section 2 of the Wills Act 1959 defines a will in technical terms as “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.”
Having a will enables you to:
If you die intestate:
Section 6 of the Distribution Act 1958 sets out various scenarios for intestacy and provides a fixed formula for the distribution of the person’s assets. The following are some examples:
To make a valid will, you must:
No, a beneficiary will not be eligible to receive any benefit from the estate if he/she or his/her spouse signs as a witness to the will.
Once executed, your will is valid until it is replaced by a new will, revoked in writing or destroyed intentionally. You will automatically be revoked if you marry or remarry, or convert to Islam.
Your will is automatically revoked upon your marriage or remarriage. An exception is where your will expressly provides for an expected marriage in a ‘contemplation of marriage’ clause.
A divorce does not affect the validity of a will. A new will is necessary in such circumstances.
The role of your executor is to ensure that your wishes in your will are fulfilled. This will involve your executor (1) locating your will, (2) applying to court for a grant of probate, (3) calling in your assets, (4) paying off your liabilities, (5) distributing your assets according to your will, and (6) preparing a statement of account.
When your executor takes charge of your assets, he will also take the role of a trustee holding your assets on trust for your beneficiaries until the assets are fully distributed. Your trustee will be subject to the responsibilities imposed by the Trustee Act 1949.
You can appoint any adult (18 years or older) to act as your executor and trustee. You can appoint between 1 to 4 executors to jointly administer your estate. You may also name persons to step into the shoes of your appointed executor(s) in the event any of them predecease you or renounce their executorship.
Alternatively, you can appoint a trust company to act as your executor and trustee. The decision on whether to appoint a friend or relative or a trust company will depend on the size and nature of your estate as well as the complexity of your will and testamentary trust. Your friend or relative may not have the necessary education or experience to properly administer the estate. Alternatively, you may feel that your friend or relative may not be sufficiently trustworthy or impartial to your wishes. In such circumstances, may wish to consider appointing a trust company to act as your executor and trustee.
Yes, your executor may also be a beneficiary to your estate. In fact, if you are leaving everything to your spouse or adult children who are capable of managing their finances, it is a natural choice to appoint your spouse or one or more of your children as your executor(s).
You are encouraged to inform and obtain the consent of the person who you want to be your executor and trustee. There is little point in appointing someone who will renounce executorship later.
You should keep your original will in a safe place. You may also engage the services of a will depository to secure your will. However, it is important that your executor knows where to find and retrieve your original will.
It is entirely up to you whether you want to disclose the contents of your will or to give a copy of your will to your executors or even your beneficiaries. Even if you choose not to give a copy of your will to your executors, they should know where to find and retrieve your original will at the necessary time.
As a general rule, the courts will require your original will before allowing a grant of probate. However, a copy of your will can be accepted if it can be proven that the original will was lost or destroyed without your intention to revoke the will.
Your executor and trustee is entitled to deduct from your estate expenses reasonably incurred in administering your estate, including legal fees incurred. Trust companies will typically charge a fee for acting as executor and trustee. Even a friend or relative is entitled to charge a reasonable fee for their time spent in administering the estate.
Ideally, your will should deal with all your assets, whether specifically or collectively. You may consider the following:
You are not required to specifically list all your assets in your will; it is sufficient to refer to your assets generally, e.g. “all my real property” or “all my bank accounts”. However, it is advisable to state the particulars of all your existing properties as this will make it much easier for your executor to identify and call in your assets.
Your will should include a residuary clause which deals with the distribution of all your assets which are not specifically covered by any other clause in your will. If you want to specifically deal with a new acquisition in your will, you will either have to execute a new will or a codicil.
Benefits under any insurance policy will be paid to the persons nominated by you under the policy. Your will cannot override nominations under the insurance policy.
Payments from your Employees Provident Fund (EPF) will also be made in accordance with your nominations registered with EPF. However in circumstances where EPF has no record of your nominations, your EPF contributions will be paid in accordance with your will.
Yes, your will can include with both assets within Malaysia and abroad. In order to enforce your will overseas, your executor may need to re-seal the grant of probate in a court of the foreign jurisdiction.
However, it is better to obtain specific legal advice for foreign real property because the law governing the willing of real property vary from country to country. In certain circumstances, it may be advisable to write another will dealing specifically with your foreign property.
Generally, yes. Your executor may apply to the High Court to re-seal the grant of probate in Malaysia. Thereafter, your executor may deal with and distribute your assets in Malaysia according to your will.
You should specify the appointment of a guardian in your will if you have children below 18 years. The appointment of a guardian is necessary if both parents die when their children are under 18 years.
A testamentary trust is a trust that is specified by a person in his will. It is a trust which only comes into effect upon the death of that person. The most common usage of a testamentary trust are as follows:
A “living trust” (also called an “inter vivos” trust) takes effect upon creation whereas a testamentary trust only takes effect at death. A living trust does not have to go through the probate court. However, the stamp duty involved in transferring real property to a living trust (at 3%) his higher than transferring it to a testamentary trust (at RM10).
A will may be contested on the grounds that the contents have been altered, that your signature is forged, or that the execution was not properly witnessed. It may also be alleged that you were of unsound mind or under undue influence at the time you made your will.
Ambiguity or important omissions in your will encourages dispute. If your intention is to exclude your spouse or any one of your children from your will, it is advisable to do so expressly. Giving a justifiable reason for the exclusion will reduce the chances of a successful contest.
If you are making your will under circumstances where the soundness of your mind may later be called into question, it is advisable to have your doctor examine you and certify that you still of sound mind. If there is a challenge, your doctor may be required to testify accordingly.
The courts have the power under the Inheritance (Family Provision) Act 1971 to make reasonable provisions for (1) your spouse, (2) a daughter who has not been married, (3) an infant son, or (4) a child who is incapable of maintaining him or herself due to some mental or physical disability, provided that in the court’s opinion your estate does not make reasonable provision for the maintenance of that dependant. When deciding such an application, the court will have regard to all circumstances including size of the estate, the interest of the named beneficiaries, the assets and income of the dependant and the conduct of the dependant to the deceased.
No, your will does not need to be stamped to be effective.
No. The estate of any person who dies on or after 1 November 1991 will not be subject to any estate duty in Malaysia.
The decision whether to rewrite your will depends on the change in your circumstances and whether such change is adequately provided for in your will. You may consider rewriting your will in any of the following circumstances:
Please contact us if you have any further questions, or if you would like to write your will.