People usually refrain from talking about death, as if “the less something is openly discussed, the less scary it becomes”. However, one should not shy away from writing a will. To avoid uncertainty after death, people usually draw up wills to account for matters and their after-death wishes.
How to draft a Will?
In order to write a valid will, the testator must fulfils all the requirements:
● Be at least 18 years old;[1]
● Be of sound mind;[2]
● Have the will in writing and executed by the testator;[3]
● Have the execution of the will witnessed by at least two (2) witnesses.[4]
Why are wills important?
A will is a written document to give effect to the intentions of a testator with respect to the distribution of his property or assets after his death”.[5] In the will, one can specify their intentions or name the specific person they wish to provide for. For example, one can clearly state in their will that they wish to leave a gift to a friend, donate to a charitable organisation, distribute different proportions of their property(ies) to beneficiaries, or where they wish to provide for a life partner with whom they are not married to. It is advisable to prepare a will where one has a complicated family structure in order to prevent any family conflicts in the future.
What happens if one dies without a will?
If someone dies intestate, their assets will be distributed according to the Distribution Act 1958 where the three main categories of the deceased’s family members, mainly the spouse, children and parent(s)[6] will be given priority. However, this act doesn’t apply if he or she is a Muslim in West Malaysia or he/she resides in Sabah or Sarawak.[7]
Wills are not just for rich people This is a misconception. One may ask, “Why should I draft a will if I do not have any valuable estate or properties to pass on to begin with?”. Actually, there is a myriad of benefits of having a will. Not only can one transfer immovable property(ies) such as lands and buildings, one can also pass down incorporeal properties such as individual shares in companies, estate, rights or interests as well as monies in the bank, shares of Government and other funds, securities for monies and so on.[8] It is even more important to have a will if one’s asset is more than debt. Despite the ability to choose one’s beneficiaries and executors, one can also appoint a guardian if they have young children. The authoritative effect of a will also minimises the chance of family disputes over property and speed up the distribution process considerably. Besides, it is a plus point to express your wishes for your last ceremony - funeral arrangements.
Is it too early to draft a Will?
It's never too early, but it may be too late to write a will. People do not usually draft a will until they are in their late years. After all, we are all optimistic that death will not come knocking on our doors when we just graduated from university. There is a great life ahead! However, there is no harm to plan ahead. After all, death could be unforeseeable and sudden. In Malaysia, anyone 18 years old and above is entitled to write a valid will.
It is always advisable to get a lawyer’s assistance to draft a will. A lawyer who is familiar with the legal requirements of will writing in Malaysia will prevent the risk of invalidation of your will, especially when issues may be complicated with many beneficiaries and estates involved.
[1] Section 4 Wills Act 1959 [2] Section 3 Wills Act 1959 [3] Section 5(1) Wills Act 1959 [4] Section 5(2) Wills Act 1959 [5] Section 2(1) Wills Act 1959 [6] Section 3 Distribution Act 1958 [7] Governed by the Intestate Succession Ordinance 1960 [8] Section 2(1) Wills Act 1959
Authored by Tiffany Ding & Wendy Tan
Kindly note that this legal article does not, and is not intended to, constitute formal legal advice by the Firm, instead all information, content and materials available on this site are for general informational purposes only. If readers require further clarification or legal advice, please email office@kevinwuassociates.com.
