It is essential to write a will for so many reasons. Writing a will in Malaysia is governed by the Wills Act 1959. The act only applies to non-Muslims.
For Muslims, they have the option to write a wasiat (bequests) and appoint a wasi (an executor) under Syariah law. Muslims are allowed to bequest a third of their wealth. The remaining two-thirds of their estate will be distributed to the Faraid heirs following Faraid proportions. Whilst a “wasiat” for Muslims and a will for non-Muslims serve the same purpose, completely different laws govern them in Malaysia.
Regardless of our faith, everyone must understand the significance of writing a will to ensure the seamless transfer of their assets and to safeguard the well-being of loved ones after their demise. Understanding the practice of will-writing is even more crucial in our multi-racial nation, considering the unique legal framework and cultural diversity.
This article will discuss writing a will for non-Muslims under the Wills Act 1959.
The Wills Act defines a will as “a declaration intended to have legal effect of the intentions of the testator concerning his property or other matters which they desire to be carried into effect after their death.“
In short, a will contains the following:
If a person dies without a will, they are said to have died intestate. Dying intestate means passing away without having a valid will. This means the deceased person’s assets and properties will be distributed under the Distribution Act.
Under the Distribution Act 1958, the distribution of assets will be based on the statutory formula, which means that the assets will be distributed according to a predetermined hierarchy. This hierarchy includes the spouse, children, parents, siblings and other relatives.
Your wishes for your estate might be different from the intestate formula under Section 6 of the act. Drawing up a valid will is critical if you want your wishes and intentions for your property and children to be executed after your death.
The most apparent benefit of drawing up a will is that YOU decide what happens to YOUR assets and children after your death.
By drawing up a will, you decide:
By drawing up a will, you will be able to:
For a will to be valid, it must comply with the formalities set out in the Wills Act, which read:
Suppose the testator cannot sign the will themselves. In that case, another person can sign the will under the testator’s direction and in the presence of the testator and the witnesses.
The witnesses are the people who confirm that the will is a true reflection of what the testator wants.
Beneficiaries or their spouses cannot be a witness to the will.
Writing a will is personal, and each testator will decide what to include in their will. There are, however, certain basic things that should be included.
You are not required to specify all property, but specifying will make it much easier for your executor to locate and distribute your assets.
To provide for assets not specified, you should include a residuary clause. A residuary clause deals with the distribution of assets not mentioned explicitly in your will.
A testator may appoint up to four executors (as long as they are 18 or older). A beneficiary may also be an executor.
The executor is responsible for the following:
When the executor takes charge of your estate, they become the trustee of your assets. They will hold the assets in trust until all your assets are distributed to your beneficiaries.
It makes sense that you should choose carefully when appointing an executor. If your estate is complex or highly valued, it could be wise to appoint a professional executor.
A will is valid until it is replaced by a new will, revoked in writing, or intentionally destroyed by the testator.
Whether you should rewrite your will depends on the circumstances and if your will is still an accurate reflection of your intentions in your current circumstances.
Circumstances that may warrant a new will:
Wills can be contested on any of the following grounds:
The estate will be distributed under the Distribution Act if the will is declared invalid. It will be as if the testator died without a will.
** TIPS: If you want to exclude someone, like a child or a spouse, you should do so expressly to avoid uncertainty. If there is any reason to doubt your soundness of mind, it is wise to have a doctor examine you and certify that you are of sound mind and capable of writing a will.
Yes, as long as your will complies with all the criteria and formality, it is valid. However, you risk having your will invalidated on any small oversight or misstep. Depending on the size of your estate and the number of beneficiaries, it can be complicated. You don’t want to risk ambiguities or forget about something or someone important.
Drawing up a valid will might be one of the most significant things you do in your lifetime. People often ask when they should draw up a will.
The answer: As soon as you are married and have children or assets, you should consider drawing up a will to express your wishes for what must happen upon your death.
If you want to be sure that your will is valid and transparent and that your wishes are correctly executed after your death, you should consult a lawyer for advice and guidance on drawing up a valid will.