Clauses, Legal Terms & Other Questions

What are the clauses that I must include in my Will?

The essential clauses in a Will are the:

  • Opening clause
  • Revocation clause
  • Appointment of executors, administrators/trustees & guardian
  • Residuary clause
  • Attestation clause
What is a residuary clause?

A residuary clause provides for assets which the testator has forgotten to insert in a Will so there is no partial intestacy.

What is an accrual clause in a Will?

An accrual clause provides for a subsequent beneficiary, should the original beneficiary passes on before you do.

Can I put a clause in my Will stating that should any of my beneficiaries challenge the validity of my Will, they will not inherit anything?

You can, but it may not prevent a beneficiary from challenging the Will. However, it might deter them if they don't have a very strong case.

What is a testamentary trust?

A testamentary trust allows for a trust to come into effect only upon the death of specific persons mentioned in a will. For example, a person may make a testamentary trust to hold residential property so that dependents can live in the house until they are financially independent, or until their death. This is to prevent the property from being sold prematurely. The property can be sold and proceeds given to the beneficiaries when the trust ends.

A testamentary trust can also be used where beneficiaries are too young and incapable of responsibly handling a lump sum benefit. It can also be used to motivate a beneficiary with payments being made upon the condition that the beneficiary achieves certain goals, i.e. obtaining a university degree.

Leaving assets to children will have the effect of impliedly creating a testamentary trust where your trustee will hold the assets on trust until each child attains the age of majority.

How does a testamentary trust differ from a living trust?

A living trust (also called an “inter vivos” trust) takes effect upon creation whereas a testamentary trust only takes effect at death. A living trust does not have to go through the probate court. However, the stamp duty involved in transferring real property to a living trust (at 3%) is higher than transferring it to a testamentary trust (at RM10).

What is a Letter of Administration (LA)?

An LA is an authority given by the Court for the administration of an estate of persons who has died intestate (i.e. not leaving a Will)

What is the Grant of Probate (GP)?

The Grant of Probate is an official document which the executors need to obtain in order to give them authority to administer the estate.

In what situation do we apply for a GP or LA?

When a deceased person passes on leaving a Will, a GP will be sought. If a deceased's gross estate (i.e. without deduction for debts and liabilities) exceeds RM600,000.00 If he/she dies without a Will, an application for an LA must be made.

Which authorities have the right to issue an order for the administration of the deceased's estate?
  • If one has a Will, the High Court will have the power to issue a Grant Of Probate. (In Sarawak this power is vested in the Probate Officer of various districts). If a deceased's gross estate (i.e. without deduction for debts and liabilities) exceeds RM600,000.00 and he/she dies without a Will, the family will have to apply to the High Court for Letters of Administration.
  • If a deceased's assets gross estate does not exceeds RM600,000.00 and must also consist of immovable, the power to make an order on the administration of the estate is vested in the District Land Administrator under s.3 Small Estate (Distribution) Act 1955.
  • Amanah Raya Berhad designated as the Public Trustee the Public Trust Corporation Act 1995 can administer the estate of a person which consist wholly movables and not exceeding RM600,000.00. This is stated under s.17 Public Trust Corporation Act 1995.
How long does it take to apply for a Grant of Probate(GP) or a Letter of Administration(LA)?

A GP application normally takes a shorter time than a LA application. Normally a GP can be extracted within a minimum of three months to a year, depending on the size of the estate; while a LA normally takes 2 to 5 years.

Under what situations will the the Court not require sureties when applying for a LA?

The Court will not require sureties if:

  • The estate does not exceed RM50,000.00.
  • A trust corporation is being appointed as the administrator.
  • The administrator is the sole beneficiary.
  • There is a Court waiver – full or partial. This is at the discretion of the Court.
Can a Grant of Probate (GP) be granted on a copy of a Will?

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

Is it advisable to put a clause in a Will that should any of my beneficiary challenge the validity of my Will he/she shall not inherit anything?

Firstly putting such a clause in your Will will not prevent a beneficiary from challenging your Will. However, it might deter them if they don't have a very strong case.