Many have heard the significance of a will but some may be intimidated by the complexity of a will or be uncomfortable with the thoughts of mortality. However, the making of a will does not have to be a daunting experience. With the proper assistance, the outcome of making a will may offer a peace of mind.
Section 2 of the Wills Act 1959 defines will 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’.
In short, a will is a legal document that expresses a person’s wishes of the distribution of his/her estate after death. In order for a will to be valid, it must comply with these requirements:
- Testator (the person making the will) must have a minimum age of 18;
- Testator must be of sound mind;
- Will must be made in writing and signed;
- Two witnesses must be present at the time of signing of the will. The witnesses to the signing of a will cannot be the beneficiary or the spouse of the beneficiary of the will.
In order to ensure that the will is executed according to the wishes of the testator, an executor is appointed. The role of an executor includes, but is not limited to, locating the will, applying for a grant of probate, paying off outstanding debts and distributing assets according to the will. If a will was made abroad, the executor will have to apply for a re-seal of grant of probate in the High Court of Malaysia. Alternatively, a trust company may be appointed to act as the executor.
If a person dies without making a will (or if his will is invalid), the person would have died “intestate” and distribution of his/her property will be distributed according to the Distribution Act 1958. The estate will generally be distributed among his/her family members – parents, spouse and descendants (issue). The distribution can be summarised in the table below:
|Family||Parents amount||Spouse amount||Issue amount|
|Leaving a spouse, issue and parents||1/4||1/4||1/2|
|Leaving spouse and issue, but no parents||–||1/3||2/3|
|Leaving parents and issue, but no spouse||1/3||–||2/3|
|Leaving parents and spouse, but no issue||1/2||1/2||–|
|Leaving parents only, no spouse and issue||Whole estate||–||–|
|Leaving spouse only, no parents and issue||–||Whole estate||–|
|Leaving issue only, no spouse and parents||–||–||Whole estate|
If a deceased dies leaving no spouse, parents or issue, the estate will be distributed to his/her brothers and sisters, grandparents, uncles and aunts.
A will may also be revoked on certain circumstances. A revocation of a will occurs automatically upon marriage or remarriage unless the will expressly provides for a ‘contemplation of marriage’ clause. A will is also automatically revoked upon the conversion to Islam because the distribution of his/her estate will follow the Islamic law of inheritance. A new will is necessary in such circumstances.
It is evident that a will impacts the future of our estate and our loved ones. Thus, the importance of proper drafting and execution of wills. As a will differs for each individual and in each circumstance, some drafting of wills may require more attention to detail and reference to legislations.
It is not always necessary to have a lawyer prepare your will for you. However, a lawyer who is familiar with the law and has the qualification and knowledge will be in a better position to:
- Explain the specific formalities of a will that needs to be complied with;
- Advise on the taxability of assets to reduce the risks of complications arising in the future
- Inquire about family circumstances to address potential issues that may arise in the future
It is safest to first consult a lawyer who will ensure that your will complies with all the statutory requirements and at the same time ensuring that the interests of you and your loved ones are protected and in accordance with your wishes.
This article was written by Aileen Lau (Partner) and Natalie Ng (Intern). Aileen heads the family law practice at Donovan & Ho. She has extensive experience in both contested and uncontested divorce proceedings, and has advised clients on family law matters ranging from child custody, adoption, payment of alimonies and division of matrimonial property.