Spouse, Family, Children

Who will inherit my assets under the Distribution Act 1958?

Section 6 of the Distribution Act 1958 sets out various scenarios for intestacy and provides a fixed formula for the distribution of the person’s assets. The following are some examples:

  • Leaving a spouse, issue and parents: spouse ¼ issue ½ parents ¼
  • Leaving a spouse and parents but no issue: spouse ½ parents ½
  • Leaving a spouse and issue but no parents: spouse ⅓ issue ⅔
  • Leaving issue and parents but no spouse: issue ⅔ parents ⅓
  • Leaving no spouse, issue or parents, then the following persons are entitled in accordance of priority:
    • brothers and sisters;
    • grandparents;
    • uncles and aunts;
    • great grandparents;
    • great uncles and aunts;
    • government.
How does marriage affect my Will?

A will is automatically revoked upon marriage or remarriage.

An exception is where your Will expressly provides for an expected marriage in a ‘contemplation of marriage’ clause, i.e. including a clause stating that your imminent marriage will not revoke your will. The name of the person whom you are marrying must be stated in the Will.

Does divorce revoke a Will?

No. Divorce, unlike marriage, does not revoke a Will. Therefore, if you have divorced or are separated, you should consider rewriting your Will.

In my Will I have stated that I will give my wife a sum of RM10,000 upon my death. If we divorce and I do not re-write my Will, will she still be able to inherit the money from me, despite no longer being my wife?

Yes. If you do not re-write your Will, your former wife will still be able to inherit the RM10,000.

The rule is that a Will speaks from its date unless a contrary intention appears in it. However, a testator can override the rule by providing a contrary intention in the Will.

For example, if he intends to give a gift to an employee, he can state that the gift will only take effect if the employee is still under his employment at the date of his death.

I don't intend for my husband to inherit any money from my estate but I was told that I should give him at least RM1.00 under my Will to prevent him from challenging my Will. Is this true?

No. Any amount given to your husband will not prevent him from challenging your Will. It is not necessary to give anything to your husband if you do not wish to, however, you should state a reason in your Will as to why you are excluding your husband from your Will. Alternatively you can state in your Will that you are aware you are leaving nothing to your husband. This will reduce the possibility of him succeeding in challenging the validity of your Will by alleging that you were of unsound mind when writing your Will (the same also applies if a man wishes to leave nothing for the wife).

If I have decided not to leave any money to any spouse/children/members of my family, can this be challenged?

The courts have the power under the Inheritance (Family Provision) Act 1971 to make reasonable provisions for: • your spouse • an unmarried daughter • an infant son • a child incapable of maintaining themselves due to a mental or physical disability

Provided that in the court’s opinion your estate does not make reasonable provision for the maintenance of that dependent.

When deciding such an application, the court will have regard to all circumstances including size of the estate, the interest of the named beneficiaries, the assets and income of the dependant and the conduct of the dependant to the deceased.

I want to give everything to my children, but I may have one or two more children in future. Does it mean that I have to rewrite my Will each time I have a new baby?

You can include the clause “en ventre sa mere” which means future children are included as well. If it is your intention that all your children should inherit your estate in equal shares, the term “children” is sufficient to mean all of your children, whether they exist prior to or after the writing of your Will.

At what age will my children inherit my property?

A person is legally capable of holding property upon attaining the age of 18. If you want your children to inherit later then it should be expressly stated in your Will the age which they should inherit.

I have adopted children, who have now left the family and I have left their names out of the Will. Can these adopted children (who have my surname) contest the Will?

In making a Will, you have the freedom to choose your beneficiaries, but there are certain categories of people who can apply under the Inheritance (Family Provision) Act 1971 for reasonable provision to be made for their maintenance, if nothing, or an insufficient amount, is left to them under the Will. These people include:

  • A wife or husband
  • A daughter who has not been married or who is, by reason of mental or physical disability, incapable of maintaining herself.
  • a son who is, by reason of mental of physical disability, incapable of maintaining himself.
  • An infant son (below the age of 21).

If your adopted children fall under categories (b), (c) or (d), they have the right to apply to court to have your Will varied to make reasonable provision for them because the definition of a "son" or "daughter" under the Inheritance (Family Provision) Act 1971, includes legally adopted children. However, whether they will succeed or not depends on the merits of the case.

Can I appoint guardians for my children and leave them money in Will?

Yes. You can appoint guardians for your young children in a Will. As for payment to the guardians, special instructions can be drafted in your Will to pay them periodic payments only if they act.

I am an orphan and I have been raised by a nanny, who is now dependent on me. When I am gone, will she benefit from my assets?

Since she never legally adopted you, she is not entitled to any of your assets unless you have written a Will making provisions for her. If you are not married and do not have next of kin, your assets will go to the government.

I am an illegitimate child and my deceased father is an orphan. He did not leave a Will. Am I able to claim from his estate as I am his only child? My mother is married to someone else and lives in another country.

According to the law, you will not be entitled to claim from your father's estate as you are illegitimate, but you can claim from your natural mother's estate provided she does not have any other legitimate children.

What happen if a person passes on leaving no spouse, children or parent?

The following person(s) are entitled in accordance to priority when an intestate dies without leaving behind a surviving spouse, children or parent:-

  • brothers and sisters
  • grandparents
  • uncles and aunts
  • great grandparents
  • great uncles and aunts and
  • Government

I am going to inherit some assets from my father when he passes on in the future. Can I specify them in my Will even though I do not own the assets at the point when I write my Will?

Yes, you can.

Many people have died suddenly due to heart attack or accidents without any last words to their family. Can I leave special instructions and loving statements in my Will expressing my love to them?

Yes. you can include special clauses and instructions to your loved ones which need not relate to money.

Can a Power of Attorney be used to transfer my assets to my family upon death?

A Power of Attorney normally allows the person whom the power is granted (the "donee") to deal with the property of the donor e.g. selling, leasing or charging it or to enter into other legal transaction on behalf of the donor. A Power of Attorney will be revoked upon the death of either the donor or donee and as such it cannot be used like a Will to effect transfer of your assets to your family upon your death.