Malaysia – Have You Created Your will?

What is a will? 

Section 2 of the Wills Act 1959[1] defines a will as a declaration intended to have legal effect of the intentions of a testator with respect to his/her property or other matters which he/she desires to be carried into effect after his/her death. It 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 a disposition by will or testament of the guardianship, custody and tuition of any child.

Only a non-Muslim can have a will under Malaysian law.

How does one create a valid will?

To create a valid will, a testator[2] must be of sound mind[3] and at least 18 years of age. No will made by any person under the age of majority shall be valid[4].

The formal validity of a will is determined by the provisions of the Wills Act[5]. No will shall be valid unless it is in writing and executed in the manner provided in section 5(2) of the Wills Act 1959[6].

To make a valid will, a testator must sign the will in the presence of at least two witnesses, who shall both subscribe the will in the presence of the testator[7]. An executor of a will can be a witness to the will as no person shall, on account of his/her being an executor of a will, be incompetent to be admitted as a witness to prove the execution of such will or a witness to prove the validity or invalidity thereof[8].

However, a beneficiary or his/her spouse cannot be a witness to the will. No beneficiary or his/her spouse will be entitled to receive any devise, legacy, estate, interest, gift or appointment if the beneficiary or his/her spouse is the attesting witness to the will[9].

What are the benefits of having a will?

Below are some of the advantages of making a will:

1. Right to choose beneficiaries and determine how the assets are to be distributed
 

As a will contains a person’s intentions as to the distribution of his/her assets at death, by making a will, the distribution of the assets will be in accordance with the testator’s wishes as the testator is free to choose his/her beneficiaries and how distribution should take place.

However, if a person dies without leaving a will, that is, a person dies intestate, distribution of a deceased’s assets is governed by the Distribution Act 1958[10] which may not be reflective of the wishes of a deceased. Section 6 of the Distribution Act 1958is summarised in the table below:
 

 

2. Vesting of deceased’s estate in executor
 

In Peninsular Malaysia, the procedural rules on applications for grants of probate and letters of administration of the estate of a deceased and the powers of executors and administrators are provided in the Probate and Administration Act 1959[11].

An executor is a person or institution appointed by the testator to carry out the terms of his/her will. By making a will, a testator is free to appoint trusted persons or institutions to be his/her executor. The testator may appoint up to four executors to jointly administer his/her estate[12].

A petition for letters of probate is filed where there is a valid will and the executor has been named in the will. The executor obtains authority or power from the will to conduct the affairs of the deceased upon the death of the deceased subject to production of probate if and when required.  

If a person dies intestate, any person interested in the estate of the deceased may apply to become an administrator and the appointment of administrator lies within the discretion of the court as stated in Section 30 of the Probate and Administration Act 1959.

An administrator is a person to whom administration is granted[13]. Administration means, with reference to the estate of a deceased person, letters of administration issued by the court whether general or limited or with the will annexed or otherwise authorising the person therein named to administer the deceased person’s estate in accordance with law[14].

Generally, unless letters of administration have been obtained, there is no one who has power or authority to act on behalf of the deceased as the administrator’s authority or power stems from the grant of letters of administration.  

Unless the court in any particular case otherwise orders:

 

 

Having a will can speed up the distribution process considerably. If a person dies intestate, the process to apply for and obtain grant of letters of administration usually take longer and is more costly.
 

3. Right to carry on with deceased’s affairs
 

An executor has the right to carry on with the deceased’s affairs subject to the validations of his/her actions by extraction of probate and provisions of the will whereas an administrator has no such right as his/her duty is to call in the assets and distribute.
 

4. Testamentary trust
 

By making a will, a testator can set up a testamentary trust. A testamentary trust is a trust which comes into effect upon the death of the testator. The terms of the testamentary trust are contained in the will and can include restrictions on any or all of the beneficiaries or, conversely, grant them extensive control. A testamentary trust is useful where a testator leaves children below the age of 18.
 

5. Guardianship of infants
 

By making a will, the testator may appoint trusted persons to be the guardian of any children below the age of 18. Without a will, if both parents have passed away, there is no certainty as to who will be the guardian. The person appointed may not be the testator’s preference. There may also be disputes as to who is the most appropriate person to be the guardian.

Conclusion

A will is therefore one of the best gifts one can leave for his/her loved ones.