MAKING A WILL : MATTER OF LIFE AND DEATH
Making a will can protect your loved ones and to avoid unnecessary complications alongside a great deal of heartaches. The creation of a will is a matter of life and death as it is the voice of the maker from his death. The contemplation of the testator (person who makes the will) in the making of a will is the contemplation of the testator’s own death.
This article aims to address some frequently asked questions in relation to the making of a will.
What is a will?
A will is a legally-binding document that lets you determine how you would like your estate to be handled upon your death. Section 2 of the Wills Act 1959 defines a will in technical terms as “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”.
During the life of the testator, the will is a mere declaration of his intention and may be freely revoked of altered. On his death, it crystallises and takes effect according to its tenor.
Advantages of having a will
We spend our lives working to provide for ourselves and our loved ones. You may have a house or a flat (whether in Malaysia or overseas), shares, savings, investments as well as your personal possessions. All of these assets form part of your ‘estate’. The advantages of having a will, amongst others are as follows:
- You can choose your beneficiaries and decide how your estate is to be distributed. Without a will, your estate will be subject to rules of intestacy that you have no control over.
- You can choose your trustee and executor that you prefer and trust to administer your estate.
- Having a will helps minimise any family disputes over properties that may arise, and also determines the “who, what, and when” of your estate.
- You can also set up a testamentary trust for your minor children, heirs with special needs or charities.
- Allows you to choose a guardian for your children and set aside funds to make sure they would be properly taken care of.
- You can disinherit individuals who would otherwise stand to inherit your estate.
- You can express your wishes for your funeral arrangements.
- Having a will speeds up the probate process.
Validity of a will
For a will to be valid, the testator must be of 18 years and above, of sound mind, memory and understanding.
With regard to formalities, a will must be in writing and signed by the testator. The testator’s signature must be made or acknowledged by him in the presence of 2 or more witnesses present at the same time. In the testator’s presence, each witness must attest and sign the will after the testator’s signature has been made.
Upon execution, your will is valid until it is replaced by a new will, revoked in writing or destroyed intentionally. It will automatically be revoked if you marry or remarry, or convert to Islam.
Where the deceased is a Muslim
The Wills Act 1957 do not apply to Muslims. For Muslims, inheritance of property has to be in accordance with the principles of Syariah laws.
A Muslim can only bequeath up to a maximum of one-third of his estate to any person of his choice that is not his wife, son, daughter and parents. The remaining two thirds must be distributed according to the faraid system, i.e. to his wife, son, daughter and parents.
Appointment of Executors
The person-in-charge of carrying out the wishes of the testator in accordance to the will is called an “executor”. Anyone who has attained the age of majority (18 years) and of sound mind can be appointed as an executor. A testator can appoint any number of executors. However, probate will only be granted to a maximum of four persons in regard to the same property. It is also advisable to name a replacement executor in the event the other dies before the testator or is otherwise prevented from administering the estate. These could be your friends or family members, or a professional such as your solicitor.
Beneficiaries of a will
Beneficiaries are those who receive benefits from the deceased person’s estate. To reduce any potential conflict of interests, witnesses should not be named as beneficiaries in the will.
A beneficiary will not be eligible to receive any benefit from the estate if he/she or his/her spouse signs as a witness to the will. It does not matter if a witness later marries a beneficiary as it is the date of the will that matters.
An executor can be appointed as the beneficiary. This is common as naturally, you would entrust family members who would usually be beneficiaries as well to administer your estate.
Wills Do Not Interfere With Insurance Policy or KWSP (EPF) Nominations
Insurance policies and the Employee Provident Fund (EPF) are governed under separate rules and are not subjected to the clauses in the will.
Payments under the insurance policies and the EPF will be made according to the nominations made.
However, if nominations have not been made, only then payments will be made in accordance with the will.
The grounds on which a will can be challenged
A will may be contested on the grounds, including: –
- that the testator is of unsound mind or under undue influence when the will is made,
- the signature has been forged,
- the contents of the will has been altered, or
- for reasons of non-compliance of the mandatory formality requirements in the Wills Act 1959.
Grant of Probate
The assets of the deceased person becomes “frozen” at his death. Where the deceased person died testate (leaving a will behind), the executor(s) would need to apply for grant of probate. This grant of probate authorises the executor(s) to “unfreeze” and to administer the deceased person’s estate in accordance with the deceased’s will.
The list of documents needed for the application of grant of probate are:
- original will,
- original death certificate,
- executor’s NRIC,
- beneficiaries’ NRIC,
- list of assets and liabilities of the deceased person and related documents, and
- affidavits of witnesses to the will.
In addition to filing the above documents in the High Court, the application of a grant of probate is to be made by an originating summons supported by an affidavit. The High Court will then fix a hearing date for the application. The grant of probate will be allowed if all papers are in order. Generally, grant of probate takes around 3-6 months to be completed.
Contentious probate proceedings
Whilst the executors are taking steps to obtain the grant of probate, anyone who wishes to dispute the validity of the will may register a caveat in the registry to prevent the issue of a grant of probate pending the commencement of contentious proceedings. This would prevent the estate from being distributed to the beneficiaries.
Once a caveat is being registered, negotiations can take place between the persons opposing and the executor and/or beneficiaries to resolve any disputes.
In the event resolutions are not possible, the person disputing may resort to court proceedings. The executor will issue a warning from the registry requiring the caveator to provide particulars of any contrary interest which the caveator may have in the deceased’s estate. Upon the warning being issued, the caveator must enter an appearance at the registry.
A contentious suit commences as soon as an appearance to the warning has been entered.
Keeping your Will up to date
Once you have written your will you should review it regularly to make sure it reflects your wishes, especially when there are changes such as marriage, divorce, remarriage, have children or other relatives you wish to benefit, inability of the executors to act, changes to the beneficiaries and/or the proportion of distribution, newly purchased property etc. In any event, it is best to consult a solicitor.
For further enquiries, please contact:
HAROLD TAN (harold@hlplawyers.com)
CHAN JIA YING (jiaying@hlplawyers.com)
