Will in Malaysia

Q:  What is a will?

A will is a legal document which a person, namely the testator, indicates his arrangement regarding to distribution of his property upon death and the care of any minor children.

Q:  What are the advantages of making a will?

Having a will in place has the following benefits:-

1. Avoid potential family disputes over the property/estates;
2. Save time and cost to administer/ distribute the assets;
3. Distribute the assets based on your wishes and arrangements;
4. Nominate your own beneficiaries and the portion of the assets to be given to them;
5. Freedom to nominate your own trustee or executor to administer your estate;
6. Appoint and nominate the guardian of your choice for your minor children.

Q:  What would happen if I passed away without a will?

In the event if you passed away without a will, your assets would be distributed according to the Distribution Act 1958 instead of distribution according to your wishes or needs of the family members.

The court would then appoint an administrator to administer the estates, or even appoint a guardian to take care of the minor children, if any.

The court would also require a bond and 2 sureties to guarantee the proper administration of the estate, which would be more expensive and take a lengthier time.

The beneficiaries would also need to obtain a further court order in order to transfer or sell the property of the deceased.

Q:  How would my property be distributed if I passed away without a will?

According to the Distribution Act 1968, the property would be distributed in the following manners: –

The following are entitled according to priority if you die without a Will and not leaving behind spouse, issue and parent(s).

• Brothers and sisters         – In equal shares
• Grandparent                    – In equal shares
• Uncles and aunts             – In equal shares
• Great grandparents          – In equal shares
• Great uncles and aunts    – In equal shares
• Government                    – Whole Estate

Q:  How long would my will be valid for?

Your will would be valid once it is executed until it is revoked or replaced by a new will. However, it is important to note that a will would be automatically revoked upon you get married or re-marry, or converted to Islam.

Q:  How would my marriage or divorce affect the validity of my will?

Once you get married or re-married, your will would be rendered invalid or void automatically unless the will expressly states that it is ‘in contemplation of marriage’.

A divorce would not render a will invalid. However, a new will would be necessary in this circumstances.

Q:  Who can I appoint to be my executor?

You can appoint any adult aged 18 years or above to be your executor or trustee. You can appoint up to 4 executors to jointly administer your estate. Alternatively, you may also appoint a trust company to act as your executor and trustee.

Q:  Can my beneficiary be my executor?

Yes. Your beneficiary can be your executor. It is a common practice for the deceased to appoint one of the beneficiaries, eg. the child to be the executor of the estate.

Q:  What are the roles of the executor?

The executor is responsible to administer the estate of the deceased accordingly to the arrangements set out under the will. The executor ought to obtain the grant of probate in court in order to have the authority to distribute the estate. The executor is also responsible to sign and execute all the documents that are necessary to transfer the estate of the deceased to the beneficiaries according to the will.

Q:  What kind of assets should I put inside my will?

You may wish to include all your assets in your will, whether tangible or intangible assets, for example:-

1. Immovable property: Houses, buildings and land, whether residential, commercial or agricultural.
2. Movable properties: vehicles, bank account, fixed deposit, cash, shares, trust funds, furniture, jewellery etc..
3. Intellectual property: copyrights, patents, designs
4. Trust property: property which is being held by a trustee on trust for your benefit;
5. Inheritance

Q:  Can I include foreign properties into my will?

Yes. You are allowed to include foreign properties in your will. However, the executor would be required to re-seal the grant of probate in order for it to be enforceable in that particular country.

Q:  Can I enforce my will in Malaysia if it is made overseas?

Yes. The executor would be required to do resealing of the Grant of Probate in Court in order to distribute the assets according to the will.

Q:  What happened if I missed out certain assets or acquire new assets after I made my will?

You should include a residuary clause in your will to cover the assets not specifically stated out in your will. Otherwise, you may need to execute a new will or amend the will accordingly.

Q:  How can my will be challenged?

A will may be challenged on the grounds that:-

1. The signature is forged;
2. The contents have been altered;
3. The testator was under unsound mind or under undue influence at the time he made the will;
4. The execution was not property witnessed
5. Ambiguity or omissions in the will

Q:  Should I stamp my will?

No. It is not required by law to stamp the will in order for it to be enforceable.

Q:  Who can be the witness for my will?

Anyone who is above 18 years old with sound mind and not a beneficiary to your will. It is also advisable for you to get an independent third party to be the witness of your will.