Will Basics

What is a Will?

Simply put, a Will is a legal document which contains a person’s intentions as to how they wish to distribute their assets after they pass on.

The legal definition of a Will is covered in Section 2 of the Wills Act 1959:

“…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.”

Who can make a Will?

Any persons of sound mind above *18 years old can make a Will.

*Note: For Sabah, persons are required to be above 21 years of age under the Section 4 of the Wills Ordinance 1953.

Do I need a Will? What happens if I pass on without a Will?

Without a Will, the law decides on the distribution of your assets and who your beneficiaries will be.

Members of your family could become involved in complex legal battles if you do not explicitly specify your wishes in a Will. If you pass on without a Will (die intestate):

  • Your estates will be distributed according to the Distribution Act 1958 (as amended in 1997) and the High Court decides over the administration.
  • The law will not provide for persons such as partners, step children, illegitimate children, aged relatives or other dependants whom you could otherwise specifically provide for in a Will.
  • There may be costly legal fees and delays in administration for the appointment of sureties and in applying for a Letter of Administration.
  • The legal process could take years and your assets could shrink in value during this time.
  • In view of all of this, your family members and/or dependants could face financial difficulties on top of a period of grief.

If you pass on with a Will:

  • You get to decide who your beneficiaries are, who administers your estates and carry out your wishes. You can safeguard the interest of those you love and care who may not be otherwise provided for by the law.
  • No sureties are required in applying for a Grant of Probate, and legal fees are less costly as compared to applying for a Letter of Administration.
  • The entire legal process will be significantly expedited, making it a smoother process for your loved ones at a time of grief.

What are the advantages of having a Will?

Having a Will enables you to:

  • Choose your beneficiaries and how your assets are to be distributed;
  • Choose your trustee and executor to administer your estate;
  • Set up a testamentary trust for your minor children, heirs with special needs or charities;
  • Choose the guardian of your minor children;
  • Minimise the chances of family disputes over property;
  • Speed up the distribution process considerably;
  • Reduce the costs of administering your estate;
  • Express your wishes for your funeral arrangements.

Do I need to engage a lawyer to write my Will and Is ThyWillbe done.com.my legal?

You do not need to engage a lawyer to write a Will, however you will need some one who has the expert legal knowledge on Wills. Yes, the Wills in ThyWillbedone.com.my have been carefully drafted by a practising lawyer in his 30th year of practice with specialised knowledge on Wills and Probate.

What is required to make a valid Will?

To make a Will valid you must be:

  • At least 18 years old (21 years for Sabah)
  • Be of sound mind
  • Have the Will in writing
  • Have it signed and witnessed by at least two witnesses who will then sign in your presence and in the presence of each other.

Can I produce my Will on videotape or VCD instead of writing everything down?

No. Unless you are a member of the armed forces of Malaysia being in actual military service, a mariner, or a seaman being at sea, all Wills must be written in a prescribed form following Section 5(1) of the Wills Act 1959.

Where should I keep my will? Can I keep my Will in my Bank's safe deposit box?

You should keep your original Will in a safe place which your executor should be aware of. You may decide to engage the services of a Will depository to secure your Will. You may also decide keep your Will in a Bank’s safe, however, when a person passes on, all of their assets including safe deposit boxes will be frozen even if it is made with a joint account holder.

What will happen if my original will cannot be located?

As a general rule, the original Will is required before allowing 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.

Can I write my own Will or use a sample Will?

Yes, you can. But in the security of your interests, you may choose to consult a professional Will-writer to get professional guidance and to review your clauses to ensure that it doesn’t leave room for misinterpretation.

On what grounds can my Will be challenged?

A will may be challenged on the grounds that:

  • The contents have been altered
  • The signature is forged
  • The execution was not properly witnessed
  • It was made under due influence at the time
  • It was made in unsound mind

Your Will may encourage dispute if there is ambiguity; justifiable reasons should be expressly stated to reduce the chances of a successful contest.

If you are making your will under circumstances where the soundness of your mind may later be called into question, it is advisable to have your doctor examine you and certify that you are still of sound mind. If there is a challenge, your doctor may be required to testify accordingly.