by Lim Ker Ming, with guidance from and editing by Tan Shang Neng
It is an urban legend still believed by some that only “professionals” such as lawyers can legally draft a valid will for you. Or that drafting a will is so complex that a “non-professional” will simply not be able to do it.
The truth is that, with some guidance, you can personally draft your own will. Especially if it is a simple one.
In this article, we will explain in brief the fundamentals required for a will to be legally valid in Malaysia, and provide some practical considerations you should think about when drafting your will. Hopefully we will be able to impress upon you the benefits of having even a basic will (as opposed to not having one), and if access to a professional to do one up for you (while still highly advisable and recommended) is not possible, to convince you that you can draft it on your own, empowering you to take control of your estate planning.
What “IS” a Will?
A will, or a last will and testament, is a legal document that describes how and by whom (the executor) you would like your property and other assets to be distributed after your death.
At its most basic level, your will requires the following 4 things for it to be legally valid and enforceable:
the will must be in writing. While it can technically be in any language so long as it is in writing, it is preferable that it be in either Bahasa Malaysia or English for ease of enforcement in Court;
you must be of sound mind and have reached the Malaysian age of majority when signing your will (i.e. 18 years old and above);
you must sign your will at the foot or end of the will in the presence of at least 2 witnesses of sound mind and have reached the Malaysian age of majority; and
these witnesses must be also present together when you sign your will, and they must acknowledge having witnessed your signature by also signing appropriately. These witnesses must not be a beneficiary of the will (i.e. be given anything under the will) or a spouse of such beneficiary.
If these fundamentals are met, the will itself is valid.
In simple distribution of estates where you say in writing, for example, that you gift the whole of your estate in equal shares to your spouse and lawful children, and you sign the will before 2 witnesses who are not your spouse, your children or your children’s spouses, the will is valid and enforceable.
However, be careful if you wish to have a slightly more detailed will. There will then be a number of other considerations that must be taken into account to ensure that any particular or specific distribution does not fall foul of any legal requirements.
Some Further Considerations
(1) Clarity
One of the most important things to consider if you are drafting a will beyond a simple distribution is to ensure that you are clear and precise with the description of your asset to be distributed, and to whom it is to be distributed to. This is to ensure that there is no confusion as to the intent, so that any disputes can be avoided between beneficiaries.
For example, merely saying “I give my Property A to my family members” is going to raise a lot of issues. Who are these “members”? What share of the Property each member is entitled to? Instead, be precise. Say “I give to [name of spouse], [name of son], [name of daughter] and [name of adopted son] each a quarter (1/4) share of my Property A”.
(2) What gifts can you make?
Generally, a person can give all assets that they own, or are legally entitled to, at the time of their death.
This normally includes your tangible and intangible assets such as your jewellery, car, property, funds in bank accounts, shares in companies, leases as well as your intangible assets such as intellectual property rights.
Fun Fact
Cryptocurrencies can be - and are in fact, considered as property. In the 2019 High Court case of Robert Ong Thien Cheng v Luno Ptd Ltd,[1] the Courts have kept themselves relevant with the times, and ruled that since cryptocurrencies are a form of ‘commodity’ where real money is used to purchase it, value can be attached to them the same way value is attached to shares.
(3) What gifts you cannot make?
As for what cannot be gifted, this logically includes things that you do not own.
Additionally, you may not be aware of this, but you also cannot distribute life insurance policy payouts and EPF monies by way of a will. As the law stands, you cannot dispose of such assets by way of will, but must instead nominate those who you intend to benefit as nominees through the appropriate channels.[2]
Take for instance, Ted had nominated Lily and Marshall as nominees with EPF, but had later named Robin and Barney to benefit from his EPF monies instead in his will. In such a situation, Lily and Marshall’s nomination shall take precedence.
(4) Who do you appoint as Executors?
Generally, you can appoint anyone as your executor so long as they too have reached the age of majority (i.e. 18 years old and above), and are of sound mind (i.e. not suffering from a mental illness that affects their thinking)[3]. Beneficiaries can also be executors.
Usually, you may want to appoint as executor somebody close who you trust is able to dependably carry out your will. When this is not possible, professionals such as lawyers and trust companies can also be asked to carry out this function, but this would require their agreement and typically fees will be charged.
(5) Who can be your beneficiaries?
You may be surprised but not only can you gift your assets to literally any person, you can also make gifts to animals and entities, i.e. charities, so long as they are alive or in existence, and capable of identification, at the time of the execution of your will.
Why the Need for a Will?
If you pass on without a will, you will be considered to have passed intestate. The 3 main consequences are these.
First, with a will you get to decide who gets what, or who does not get anything for that matter. But without a will, your assets will instead be distributed according to the law[4]. This latter situation may lead to various disputes by beneficiaries as to their respective shares and entitlements, especially when there are many beneficiaries.
Second, to put it simply, the process of managing your estate is procedurally simpler and more straightforward if done through a will (probate, where an executor is appointed to manage and distribute) as opposed to without (administration, where an administrator is appointed instead).
Third, in the absence of a will in which you have identified all your assets, upon your death, your administrator will need to conduct the necessary due diligence and forensic investigation to identify all assets. This takes time, effort and resources.
When You Should Refer to an “Expert”
There are many outfits out there now, such as law firms who principally do probate work or trust companies, who will happily help you draft a will inexpensively. Ideally, if access to such professionals is not an issue, it is recommended that you always refer and defer to them. This is especially so when the distribution is going to be complicated, involving a diverse range of assets and many and varying classes of beneficiaries, or requires complex structures such as trusts – in such situations, without expert guidance, the likelihood of making a distribution that is not valid is higher.
However, if access to such professionals is not possible, and you only wish to make a simple and general distribution to avoid passing on intestate, an educational template of a basic will is included below as a point of reference.
Hopefully, the above helps!
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[1] [2020] 3 AMR 143
[2] Regulation 7(2) of the Employees Provident Fund Regulations 2001 - and the case of How Yew Hock v Lembaga Kumpulan Wang Simpanan Pekerja (1996) 3 CLJ 1.
[3] S.20 and 21 of the Probate and Administration Act 1959
[4] S.6 of the Distribution Act 1958, which is applicable to only Peninsular Malaysia and Sarawak. The governing legislation for Sabah would be the Intestate Succession Ordinance 1960.
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