An inquiry into the creation of a will is an essential step in the estate planning process. A will serves as a legal document that articulates an individual’s last wishes regarding the distribution of their assets and the management of their affairs after their death. An inquiry into the creation of a will is a proactive and responsible approach to estate planning, providing individuals with the opportunity to articulate their wishes, protect their assets, and ensure the well-being of their loved one. For your interest, we have prepared some frequently asked questions for wills regarding non-Muslim in Malaysia.

1. What is a will?

Section 2 of the Wills Act 1959 defines a will 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”.

In gist, it means that a will is a document contains a person’s intentions to distribute of his or her assets at death.

2. What are the advantages of having a will?

The advantages of having a will are as such:-

1. To specify how you want your assets to be distributed among your designated beneficiaries;
2. It allows you to choose your designated executor to administer your assets;
3. If you are a parent with minor children, it allows you to appoint a legal guardian for your minor children to ensure your minor children’s rights are legally recognised and properly be taken care of;
4. It allows you to minimise or even to prevent disputes among your family members;
5. It provides you a peace of mind where your loved one will be taken care of in accordance to your wishes;
6. To increase the efficiency in distributing of your assets;
7. To reduce the administration costs of administering your assets;
8. To express your wishes for your funeral arrangements.

3. What makes a will valid?

1. 18 years old and above;
2. Having a sound mind;
3. Your will is in writing and signed by you;
4. At least 2 witnesses are signing to indicate their witnessing of your signature on the will.

4. Can a beneficiary witness your will?

No. A beneficiary who is receiving any benefits from your estate is illegible to be a witness to your will.

5. How long will your will be valid?

Your will is valid until it is replaced by a new will or revoked in writing.

6. Who can you appoint as executor?

You can appoint any person who is 18 years old or above to act as your executor. You can name between 1 to 4 executors to jointly administer your assets. You can even appoint your beneficiary to act as the executor of your estate.

7. What is the role of your executor?

The main role of your executor is to ensure all the wishes in your will to be fulfilled and followed accordingly. The usual jobs of your executor are to locate your will, to apply a grant of probate from the court, to identify and discover all of your assets, to pay off your debts prior to assets distribution to the beneficiaries, to distribute your assets according to your will and other relevant jobs.

8. Where should you keep your will?

You should keep your original will in a safe place or, alternatively, you may engage the services of a will depository to secure your will. Nonetheless, it is utmost important that your executor is able to locate and to retrieve your original will.

9. What will happen if your will cannot be located?

Generally, a court will require your original will prior to granting a grant of probate. However, a copy of your will can be accepted if it can be proven that the original will was lost or destroyed without your intention to revoke the will.

10. What kind of assets should cover in my will?

Generally, it should include your immovable assets (such as land, house, and etc), movable property (cash, bank balances, shares, membership, vehicle, jewellery and etc), intellectual property, trust property and etc.

11. What happens if you have left out certain assets or acquire assets after making your will?

You can include a residuary clause in your will to deal with the distribution of all your assets which are not specifically mentioned in your will.

12. Can your will deal with your insurance policies or EPF money?

Your insurance policy will pay to the person nominated by you under the policy and your will is unable to supersede the nominations under the insurance policy.

Employees Provident Fund (“EPF”) will also pay in accordance with your nominations lodged with EPF. But your EPF contributions will be paid in accordance to your will in the event that EPF has no record of your nominations.

13. What happens if you die without a will?

1. Your assets will be distributed in accordance with the Distribution Act 1958;
2. Disputes may arise between family members and/or beneficiaries regarding who should be appointed as an administrator to administer your assets;
3. The court will appoint a guardian for your minor children where such candidate may not be favourable by you;
4. The process of distribution will be lengthier and costly wherein the administrator of your estate may be required to provide a bond and to appoint 2 sureties to guarantee the proper administration of your estate and even to obtain a further court order to transfer the immovable property to the beneficiaries.

Should you have further inquiries or require legal assistance in writing your will, please do not hesitate to contact us at +6011-5657 1350 and reach us via email at lowzhigeneral@gmail.com

Written By: Yap Jian Zhi, Nicholas Edited By: Low Chee Hau, Melvin

Note: This article does not constitute legal advice in any case. The facts in each and every case will differ and you can contact us for complimentary legal advice.