INTROD INT RODUCTI UCTION ON
In Malaysia the following Acts of Parliament deal with the manner and distribution of the estate of the deceased:
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Wills Act, 1959 istribution Act, 195!" #istribution $Amendment% Act, 199&, which amended s' ( of the A,)
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Probate and Administr Administration ation Act, 1959
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*mall +states #istribution) Act, 1955
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Inheritance #amily Proisions) Act, 19&1
W./ *.02 A P+3*04 MA+ A WI22 Malaysians tend to get ery irritated, u6set and distressed and at times een offended wheneer they are as7ed, 8.ae you written your will ;heir common res6onses are identical' ;he normal re6ly is, Are you thin7ing that I am going to die soon 0ne may or may not die soon, but the reality is that death is certain' When it isits us is uncertain' It may isit us at any time of the day or night, or at any 6lace' 3emember what ha66ened on *e6tember 11, <==1' ;he >,=== oer 6eo6le who 6erished on that day, did not e?6ect death that morning' ;hey e?6ected to go to to wor7, finish their wor7, hae some meetings with their friends and then return to the comfort of their homes' @ut to these >=== oer 6eo6le DEATH came' It was une?6ected, uninited and unwarranted' 4one of them e?6ected death that day' da y' 4one of them antici6ated death that day' 4one of them thought about death that day' /et /et they died' 4ow imagine if they had not written their wills, how will their 6ro6erties be distributed' 2ife goes on een after death' 2ife goes on for those who are still liing'
ADVANTAGES OF A WILL
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;he ;estator ;estator #i'e' the the 6erson who ma7es ma7es the will" the female female ersion ersion is 8;estatri?) can choose a reliable person or 6ersons #6referably <) to be the e?ecutor#s) and trustee#s) of his will' If there is no will then some adult members will hae to choose to be the administrator' administrator' Malaysians are uniue 6eo6le' ;hey
do not li7e to go to courts and be subBected to inconeniences, but they want benefitsC *ometimes the estate of the deceased does not get distributed because the members of the deceasedDs family want the 6ro6erties but nobody wants to ta7e on the added res6onsibility of becoming an administrator'
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;he ;estator has control oer the !anner in "hich his propert# "ill be $istrib%te$& ;he ;estator can gie s6ecific directions as to who should get which of his 6ro6erties' *uch freedom is not aailable un der s'( A'
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;he ;estator has control oer "ho "ill be the recipients of his generosity' .e can choose not to gie anything to a 6articular daughter or son' ;herefore if a 6articular daughter or son has ins%lte$ a father, the father can choose to write herEhim out of his willC
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;he ;estator can choose ho" !%ch o' his assets he "ants to (ie to his family members, relaties, friends etc' nder the A, it is not 6ossible to 6roide for friends or charities or other organiGations'
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;he proisions o' the DA are strict , es6ecially in the case of family members' or e?am6le the word 8child is defined in the A as the legitimate child or an ado6ted child who has been ado6ted under the 6roisions of the Ado6tion Act,195<' Any other child will be e?cluded by the A, but not so under a will'
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;he will ma7es $istrib%tion o' lan$e$ propert# eas# ' 0therwise there will be dis6utes oer the landed 6ro6erties among the children and between the children and the suriing s6ouse'
WHAT IS A WILL)
A will is a "ritten $eclaration of a 6ersonDs intentions or wishes, concerning the distribution , dis6osition and deolution of his 6ro6erty after his death' A will is a uniue document because it only becomes effectie after the ;estator #;estatri?) has died' ;herefore it is often said that a will s6ea7s from death' ntil death occurs the will has no legal effect' ;he will is unenforceable until death' ;he will can be aried to meet changes in the testatorDs circumstances and needs' ;herefore the will is said to be ambulatory i'e' not 6ermanent and its 6roisions are not final until death' ntil the ;estatorDs death, he can ary the terms of his will" he can reo7e the will" he can deal with the 6ro6erty as he thin7s fit until his death'
WHAT *INDS OF +RO+ERTIES CAN ,E DIS+OSED OF ,- A WILL)
All 7inds of 6ro6erties can be dis6osed off by a will' Pro6erties can be categoriGed under the following categories:
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moableE6ersonal #such as money, Bewellery, cars, shares, furniture, 6aintings, scul6tures, stam6 collection, boo7s, clothes, 6ens, 6ots and 6ans and all other household items and other chattels )"
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immoableEreal #such as houses and land)" and
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intellectual 6ro6erty #co6yright, 6atents, etc)
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money 7e6t in the +P account will not be goerned by the 6roisions of the will' ;he money will be distributed to the 6ersons nominated as beneficiaries in the +P nomination form' ;herefore ensure that you hae changed the beneficiaries to your +P money 40WCCC
FOR.ALITIES FOR .A*ING A VALID WILL
;he formal reuirements for ma7ing a alid will are foun d in the Wills Act, 1959 and the formalities must be strictly obsered'
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;he will must be in writing'
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;he ;estator must be of the age of maBority ';his means that the ;estator must be 1! years and aboe'
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;he ;estator must be of sound mind when he ma7es the will'
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;he ;estator must hae 6ro6erty to dis6ose off either at the time of ma7ing the will or which 6ro6erty the ;estator may become entitled to subseuent to the e?ecution of the will'
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;he will must be signed at the foot or end of the will by the ;estator or by some other 6erson in his 6resence and by his direction';herefore any 6roision stated below the signature is inalid'
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;he ;estatorDs signature must be !a$e or ac/no"le$(e$ by the ;estator in the 6resence of < or more witnesses 6resent at the same time'
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;he witnesses shall subscribe the will in the 6resence of the ;estator'
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Publication of the Will is not necessary'
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@eneficiaries and their s6ouses cannot be witnesses to the will' In such an eent, the benefits due to the beneficiary or hisEher s6ouse will become utterly null and oid' @ut an +?ecutor can be a witness'
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Any alterations, defacement, cancellation or scratches shall not be alid unless initialed by the ;estator and attested by the witnesses';herefore do not ma7e any alterations, cancellations or scratches' Ma7e as many drafts as needed until you are satisfied' ;hen $estro# the drafts'
P3IHI2++ WI22* ;he law has also made 6roisions for certain grou6s of 6eo6le to ma7e 8 6riileged wills' ;he 6roisions of sections F, 5 and ( do not a66ly to members of armed forces in actual military serice, a mariner or seaman being at sea' ;herefore these 6eo6le can ma7e alid wills een though they may below 1! years old" the will can be oral #i'e' told to another member of the armed forces or nay or another seaman) and if written, need not be attested '
REVOCATION OF WILLS
A testator can reo7e his will any number of times' It is the last will that will be considered as the alid will 6roided the formalities reuired for the ma7ing of a alid will can be found'
3eocation of a will occurs in the following manner: Reocation b# a s%bse0%ent "ill
It is always 6rudent and wise in 6re6aring a new will # een if it is the first will) to insert a clause reo7ing all former wills' ;his will aoid a 6roblem if there are < wills and the court will hae to decide which of the clauses in the earlier will hae been reo7ed by the later will' Reocation b# $estr%ction
;here must be an intentional destruction of the will by the ;estator or by some other 6erson in his 6resence or under his direction' Accidental destruction does not reo7e a will' In Jheese ' 2oeBoy the ;estator after writing u6on a 6art 8;his is reo7ed threw the will in a corner of his study' ;he housemaid 6resered it until the ;estatorDs death' ;he Jourt held that the will had not been destroyed and so could be admitted to 6robate' Reocation b# s%bse0%ent !arria(e
Where a 6erson ma7es a will and then marries, his Eher will is reo7ed by the marriage and becomes inalid' @ut a will made in contem6lation of a marriage shall not be reo7ed by the solemniGation of the marriage contem6lated' 2et me gie you < scenarios to illustrate this legal 6rinci6le:
a) Mr' KEMiss K, while being single ma7e a will' A few years later Mr'K EMiss ? marries' .e forgets about the will he has made earlier' .e then dies' ;he will that he made is inalid and is deemed to hae been reo7ed u6on his marriage' ;herefore he dies intestate and the 6roisions of the istribution Act will now a66ly'
b) Mr K E Miss K 7nows heEshe is getting married to Miss /E Mr' / in Luly' In contem6lation of that marriage Mr' K E Miss K ma7es a will' ;hat will is a alid will'
Doctrine o' Depen$ant Relatie Reocation
If a reocation of a will is conditional, it will only be effectie when the reocation is fulfilled' +'g' when a testator reo7es his will with the intention of ma7ing a new one, but forgets to do so, then the reo7ed will remains alid and will be regarded as the will of the ;estator' ;he court will ma7e a ruling declaring the original will #though reo7ed) as a alid will if the Jourt is satisfied that the ;estator did not intend to reo7e his will absolutely but merely reo7ed it as a ste6 towards ma7ing a new will'
VALIDIT- OF WILLS
What ma7es a alid will ;his issue of alidity is closely tied to the items discussed under the heading FOR.ALITIES FOR .A*ING A VALID WILL&
Testa!entar# capacit#
;he ;estator must be of the age of maBority e?ce6t for 6ersons who are entitled to ma7e 6riileged wills'
O' so%n$ !in$
;he testator must understand the nature and e?tent of his 6ro6erty, the beneficiaries who are to be the reci6ients of his generosity and the dis6osition that he is ma7ing'
Not o' %nso%n$ !in$
Persons of unsound mind include defectie 6ersons as defined under the Mental isorders Act, 195< as well as 6ersons who hae been certified and detained in a mental hos6ital or a 6erson of sub normal mind' If at the time of ma7ing a will, a testator was through disease so deficient in memory that he was obliious to the claim of his relaties, then the will is inalid' In 3e 4g ;oh Piew #deceased) the testator made the first will in 19F& and he was found to be of sound mind' In 19F9 when he made his second will he was e?tremely ill and failed to 6roide for his son as he had done in the earlier will' .e also told one of the witnesses that he had no son' ;he court declared the second will as inalid' A testator though freuently of unsound mind can neertheless ma7e a alid will during a lucid s6ell' In Angullia ' 3ahimaboo the ;estator had been 6ronounced insane in 191=, 191!, 19F' uring a lucid 6eriod in 19>!, the ;estator made a will giing most of his estate to charity and died > years later' ;he doctor and lawyer who attested the last will de6osed to the fact that the testator was 6hysically wea7 and mentally dull, yet was of sound mind, memory and understanding' ;he testator died of a d iabetic attac7' ;he court held that on the eidence as a whole the will had been made during a lucid interal'
Fra%$1 Fear1 Coercion an$ Un$%e In'l%ence Fra%$2 A will that is obtained by fraudulent means in order to benefit certain beneficiaries will be inalid' +'g' @y lying to a 6erson to attest a will by claiming that it is a recei6t, etc' Fear2 Where a 6erson is induced by threatening behaiour on the 6art of another to write a will, then such a will is inalid' ear also coers situations where there is duress, e'g' A wife constantly nagging her husband to write a will in her faour or ice ersaC Coercion an$ Un$%e In'l%ence2 ;hese occur where the testator ha66ens to be rich, old and infirm and is lin7ed to a young lady or ice ersa'
VARIATIONS TO THE +ROVISIONS OF A WILL
S&3& Inheritance 4Fa!il# +roision5 Act1 6786
Where a 6erson dies domiciled in Malaysia leaing behind a wifeEhusbandE an unmarried daughter or infant son, who suffers from some mental or 6hysical inability and is inca6able of maintaining herEhimself, then if the court on an a66lication by or on behalf of the wifeEhusbandE daughterEson, is of the o6inion that the dis6osition of the deceasedDs estate effected by his will is not such as to ma7e reasonable 6roision for the maintenance of that de6endant, the Jourt may order that such reasonable 6roision as the Jourt thin7s fit shall be made out of the deceasedDs net estate for the maintenance of that de6endant'
Dee$ o' Fa!il# Arran(e!ent
Where all the beneficiaries are in agreement then a eed of amily Arrangement can be made to circument the 6roisions of the will' In a case that I handled, the 6erson had a number of 6ro6erties and he 6re6ared a will beueathing the 6ro6erties to all his children' @ut the children wanted a ariation to be made and to sell off one of the 6ro6erties and to settle the outstanding loan on other 6ro6erties' A deed of arrangement was drafted and signed by all the beneficiaries and an a66lication was made to the .igh Jourt for the 6ro6erties to be distributed 6ursuant to the eed of Arrangement'
+RACTICAL GUIDELINES WHEN .A*ING A WILL
2et us consider some of the 6ractical guidelines for ma7ing a will" 1'
Jontact a lawyer whom you 7now or who is reliable'
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@ring along your identity card'
>' 2ist all the assets that you hae: land, houses#it is adisable to bring co6ies of the title to these 6ro6erties), car#s) #registration card), shares, Bewellery, t, radio, hi-fi, silerware, brassware, heirlooms, boo7s, stam6 E first day coer collection, badge collection , watches, 6ens and other collectibles such as toy dogs, bells, etc, ban7 accounts and other sundry items in the house can be described as chattels'
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Identify the members of your 'a!il#, especiall# #o%r spo%se #bring along hisEher identity card ) and the children to whom you want to 6roide for in your
will' Ma7e sure their names are correctly s6elt' It would be 6rudent if you can 6roduce 6hotoco6ies of their identity cards or birth certificates'
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Identify other members of your family, such as brothers, sisters, ne6hews, nieces, uncles and aunts whom you may want to remember as well as any friends whom you may want to benefit by giing them certain items that form 6art of your estate' +nsure that their names are s6elt correctly' If you want to ma7e gifts to certain organiGations # such as PAW*, *PJA, WW, or welfare organiGations or religious institutions, etc) ensure that the names of these organiGations are correctly s6elt and can be identified'
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Jontact your e?ecutors and obtain their consent'
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et < witnesses' In most cases, the lawyer who drafts the will, would be one of the witnesses' @ut this is only a 6ractice' In reality an y < 6ersons who are not beneficiaries under the will and not their s6ouses can be witnesses'
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o oer the draft co6y until you are satisfied and then ma7e fair co6ies' @ut $estro# the draft co6ies'
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*eal the will and the co6ies and 7ee6 them in a safe 6lace' Inform the e?ecutors where it is 7e6t # e'g' in a safety de6osit bo? in a ban7, in a drawer or in a safe)'
1=' 3emember you do not hae to inform your beneficiaries what you hae beueathed them' /ou will hae to decide whether you want to inform your family members that you hae made a will'
ONE FINAL CO..ENT
A testator is not 6reented from dealing with his 6ro6erty in any way he sees fit, subseuent to the ma7ing of a will' ntil the testator dies, he has a right to deal with his 6ro6erty in any way he li7es' ;herefore a testator can sell his houses#s), though he has beueathed it to his wife or child' ;he result will be that if a 6articular item of 6ro6erty is no longer 6resent because it has been dis6osed off by the ;estator, then the beneficiary will not receie that 6articular item since it no longer e?ists as the testatorDs 6ro6erty' Alternatiely a testator may acuire new assets or 6ro6erties after the ma7ing of a will and if these items are not included n the will, then the law of intestacy will a66ly to these items of 6ro6erty that hae not been dealt with by the testator in his will' ;herefore it is 6rudent to reise your wills now and then'
WHAT A,OUT INTESTAC-)
Intestacy occurs when a 6erson dies without leaing a will or a alid will' ;he distribution of his estate is goerned by the 6roisions 6f the istribution Act ,195!, es6ecially the amendment brought about by the istribution #Amendment) Act, 199& to s' ( of the main Act' 2et us loo7 at how the distribution will be done 6ursuant to s' ( Where either a husband or wife dies leaing:
Relationship
Share
*6ouse only
1==
*6ouse and 6arent#s)
N - s6ouse N - 6arent#s)
Issue only
1==- issue
Parent #s)
1== - 6arents
*6ouse and issue#s)
1E> O s6ouse O issue#s) liing
Issue and Parent#s)
O issue 1E> O 6arents
s6ouse, issue#s) and 6arent#s)
- s6ouse N - issue - 6arent#s)
no s6ouse, no issue, no 6arent#s)
suriing brothers Q sisters in eual shares"
grand6arents in eual shares
uncles and aunts in eual shares
great grand6arents in eual shares
CONCLUSION
It is obious that the 6roisions of s'( A do not 6roide for fle?ibility in dis6osing of the estate of the deceased' ;here are no aenues for ma7ing 6roisions to friends, or charitable organiGations' 4or can the intestate choose how much he wants to gie to a 6articular member of the family nor what he wants to gie' ;herefore it is 6rudent to ma7e a will while you are alie so that the liing can get on with their lies without much suabble'
