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“A will can save one’s family from being put into a quagmired pit of legal conundrum, in case of death (which may even be untimely). – Henrietta Newton Martin”
Korean dramas and Bollywood serials have probably educated the Malaysian public enough about how either the existence of a badly drafted Will or the absence of any Will at all, can cause families to crumble and relationships to end. These shows, however, don’t tell you about the crucial existence of these documents.
Here’s some basics on non-Muslim Wills in Malaysia.
What is a Will?
The legal definition of a Will is provided for in Section 2 of the Wills Act 1959:
“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 simple sense, a Will is a legal document that outlines a person’s wishes and intentions in distribution of said person’s estate (belongings, property, money etc) after death.
Can Anyone Make a Will?
Under the Wills Act, a Testator (the person making a Will) and the Will must have the following criteria:
Testator is of the age of majority (18 years);
Testator must be of sound mind;
Will must be made in writing;
Will must be signed by the Testator; and
Two witnesses must be present at the time of signing of the will.
It is important that the witnesses to the signing of a Will are neither the beneficiary nor the spouse of the beneficiary of the Will as these can render the Will invalid. It is common practice that solicitors assisting with the drafting of the Will become the witnesses of a Will.
What Does a Will Look Like?
A simple Will has 3 components, namely: beneficiaries, executors and assets/liabilities.
(1) Beneficiaries
Beneficiaries are individuals to whom the Testator wishes to leave his/her assets to. They can be a family member, a close friend, your unmarried partner, a charity, an organization, an unborn fetus; anyone really.
It is of utmost importance that the details of the beneficiaries are clear and accurate to prevent any complications later on.
(2) Executors
An Executor is an individual that is selected to execute the Will according to the Testator’s wish. It is advised that the Executor be informed and have consented to perform the duty of an executor prior to naming the person in the Will.
Most Wills only have one named Executor although some prefer appointing a co-Executor as well. It is also common that a Will names a “Substitute Executor” to step into the shoes of your appointed Executor in the event any of them predecease the Testator or renounce their executorship.
Your Executor may also be a Beneficiary of your Will. In fact, more often than not, this is the case as most Executors are often a spouse or a child of the Testator.
The role of an Executor is generally as follows: locating the will and the beneficiaries, making an application for the grant of probate, settling any outstanding debts, and distributing the assets according to the Will.
(3) Assets and Liabilities
One’s assets can include the following, real estate properties such as your house/shop lot and personal property such as bank balances, EPF, gold, shares/bonds, car, etc.
It is not a legal requirement to name all your assets in the Will but it is advised that you do so to avoid assets being disposed off in an unsatisfactory manner.
A good Will should include a “residuary clause” which handles the distribution of your assets which are stated in the Will.
It is also advised to list out any liabilities that you are aware of such as bank loan, debt etc and have a payment plan for these as well.
Does a Will Last Forever?
Generally, yes. A valid Will that is done in accordance with the Wills Act shall last forever unless for the following circumstances which may revoke the Will:
The Testator expressly states in writing for the Will to be revoked.
Physical destruction of a Will by the Testator with the intent of revocation.
The Testator makes a new Will at a later date, thus automatically revoking the older Will.
The Testator gets married or re-marries after writing the Will (unless the Will is made in contemplation of the said marriage). Note: A divorce does not revoke a Will.
The Will is automatically revoked if the Testator converts to Islam as the laws governing Will or Wasiat is different under Islamic principles.
Can One Rewrite a Will?
Yes, a Will can be changed, altered and replaced at any time by the Testator. Usually Testators opt to rewrite their will depending on the changes in circumstances in their life such as the death of a beneficiary/executor, the inclusion of a new beneficiary, addition of new assets etc.
*Stay tuned for Part 2 on the importance of dying with a Will.*
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