Professional Documents
Culture Documents
In Malaysia the following Acts of Parliament deal with the manner and distribution of the
estate of the deceased:
ADVANTAGES OF A WILL
1.
The Testator (i.e. the person who makes the will; the female version is
Testatrix) can choose a reliable person or persons (preferably 2) to be the
executor(s) and trustee(s) of his will. If there is no will then some adult members
will have to choose to be the administrator. Malaysians are unique people. They
2.
The Testator has control over the manner in which his property will be
distributed. The Testator can give specific directions as to who should get which
of his properties. Such freedom is not available under s.6 DA.
3.
The Testator has control over who will be the recipients of his generosity. He
can choose not to give anything to a particular daughter or son. Therefore if a
particular daughter or son has insulted a father, the father can choose to write
her/him out of his will!
4.
The Testator can choose how much of his assets he wants to give to his family
members, relatives, friends etc. Under the DA, it is not possible to provide for
friends or charities or other organizations.
5.
The provisions of the DA are strict, especially in the case of family members.
For example the word child is defined in the DA as the legitimate child or an
adopted child who has been adopted under the provisions of the Adoption
Act,1952. Any other child will be excluded by the DA, but not so under a will.
6.
The will makes distribution of landed property easy. Otherwise there will be
disputes over the landed properties among the children and between the children
and the surviving spouse.
WHAT IS A WILL?
A will is a written declaration of a persons intentions or wishes, concerning the
distribution , disposition and devolution of his property after his death. A will is a unique
document because it only becomes effective after the Testator (Testatrix) has died.
Therefore it is often said that a will speaks from death. Until death occurs the will has no
legal effect. The will is unenforceable until death. The will can be varied to meet changes
in the testators circumstances and needs. Therefore the will is said to be ambulatory i.e.
not permanent and its provisions are not final until death. Until the Testators death, he
can vary the terms of his will; he can revoke the will; he can deal with the property as he
thinks fit until his death.
money kept in the EPF account will not be governed by the provisions of the
will. The money will be distributed to the persons nominated as beneficiaries
in the EPF nomination form. Therefore ensure that you have changed the
beneficiaries to your EPF money NOW!!!
The formal requirements for making a valid will are found in the Wills Act, 1959 and the
formalities must be strictly observed.
The Testator must be of the age of majority .This means that the Testator must
be 18 years and above.
The Testator must have property to dispose off either at the time of making
the will or which property the Testator may become entitled to subsequent to
the execution of the will.
The will must be signed at the foot or end of the will by the Testator or by
some other person in his presence and by his direction.Therefore any
provision stated below the signature is invalid.
The witnesses shall subscribe the will in the presence of the Testator.
PRIVILEGED WILLS
The law has also made provisions for certain groups of people to make privileged wills.
The provisions of sections 4, 5 and 6 do not apply to members of armed forces in actual
military service, a mariner or seaman being at sea. Therefore these people can make valid
wills even though they may below 18 years old; the will can be oral (i.e. told to another
member of the armed forces or navy or another seaman) and if written, need not be
attested .
REVOCATION OF WILLS
A testator can revoke his will any number of times. It is the last will that will be
considered as the valid will provided the formalities required for the making of a valid
will can be found.
a) Mr. X/Miss X, while being single make a will. A few years later Mr.X /Miss x
marries. He forgets about the will he has made earlier. He then dies. The will that
he made is invalid and is deemed to have been revoked upon his marriage.
Therefore he dies intestate and the provisions of the Distribution Act will now
apply.
VALIDITY OF WILLS
What makes a valid will? This issue of validity is closely tied to the items discussed
under the heading FORMALITIES FOR MAKING A VALID WILL.
Testamentary capacity
The Testator must be of the age of majority except for persons who are entitled to make
privileged wills.
Of sound mind
The testator must understand the nature and extent of his property, the beneficiaries who
are to be the recipients of his generosity and the disposition that he is making.
2.
3.
List all the assets that you have: land, houses(it is advisable to bring copies of the
title to these properties), car(s) (registration card), shares, jewellery, tv, radio, hi-fi,
silverware, brassware, heirlooms, books, stamp / first day cover collection, badge
collection , watches, pens and other collectibles such as toy dogs, bells, etc, bank
accounts and other sundry items in the house can be described as chattels.
4.
Identify the members of your family, especially your spouse (bring along
his/her identity card ) and the children to whom you want to provide for in your
will. Make sure their names are correctly spelt. It would be prudent if you can
produce photocopies of their identity cards or birth certificates.
5.
Identify other members of your family, such as brothers, sisters, nephews, nieces,
uncles and aunts whom you may want to remember as well as any friends whom
you may want to benefit by giving them certain items that form part of your
estate. Ensure that their names are spelt correctly. If you want to make gifts to
certain organizations ( such as PAWS, SPCA, WWF, or welfare organizations or
religious institutions, etc) ensure that the names of these organizations are
correctly spelt and can be identified.
6.
7.
Get 2 witnesses. In most cases, the lawyer who drafts the will, would be one of
the witnesses. But this is only a practice. In reality any 2 persons who are not
beneficiaries under the will and not their spouses can be witnesses.
8.
Go over the draft copy until you are satisfied and then make fair copies. But
destroy the draft copies.
9.
Seal the will and the copies and keep them in a safe place. Inform the executors
where it is kept ( e.g. in a safety deposit box in a bank, in a drawer or in a safe).
10.
Remember you do not have to inform your beneficiaries what you have
bequeathed them. You will have to decide whether you want to inform your family
members that you have made a will.
A testator is not prevented from dealing with his property in any way he sees fit,
subsequent to the making of a will. Until the testator dies, he has a right to deal with his
property in any way he likes. Therefore a testator can sell his houses(s), though he has
bequeathed it to his wife or child. The result will be that if a particular item of property is
no longer present because it has been disposed off by the Testator, then the beneficiary
will not receive that particular item since it no longer exists as the testators property.
Alternatively a testator may acquire new assets or properties after the making of a will
and if these items are not included n the will, then the law of intestacy will apply to these
items of property that have not been dealt with by the testator in his will. Therefore it is
prudent to revise your wills now and then.
Relationship
Share
Spouse only
100%
- spouse
- parent(s)
Issue only
100%- issue
Parent (s)
100% - parents
1/3 spouse
2/3 issue(s) living
2/3 issue
1/3 parents
- spouse
- issue
- parent(s)
CONCLUSION
It is obvious that the provisions of s.6 DA do not provide for flexibility in disposing of
the estate of the deceased. There are no avenues for making provisions to friends, or
charitable organizations. Nor can the intestate choose how much he wants to give to a
particular member of the family nor what he wants to give. Therefore it is prudent to
make a will while you are alive so that the living can get on with their lives without much
squabble.