Writing a Will in Malaysia

Writing a will in Malaysia is governed by the Wills Act of 1959. The Act only applies to non-Muslims.

Persons professing the religion of Islam need to draw up a “wasiat” (a will) and appoint a “wasi” (an executor) under Syariah law. Whilst a “wasiat” and a will serve the same purpose, completely different laws govern them.

This article will discuss writing a will under the Wills Act 1959.

What is a will?

The Wills Act defines a will as a declaration intended to have legal effect of the intentions of the testator with respect to his property or other matters which he desires to be carried into effect after his death.

In short, a will is an expression of the testator’s (the person making the will) wishes on how their assets (the estate) must be distributed after their death. The testator may also include provisions for the guardianship and custody of their children.

What happens if you don’t have a will?

If a person dies without a will, the estate is distributed under the Distribution Act of 1958. Intestate succession is a lengthy and costly process. Your assets are distributed among your family members according to a set formula.

Your wishes for your estate might not be the same as the Intestate formula. If you want your wishes and intentions for your property and children to be executed after your death, it is critical to draw up a valid will.

What are the benefits of writing a will?

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:

  • Who your beneficiaries are.
  • How your assets will be distributed.
  • Who will be the guardian of your minor children.
  • Who will execute and administer your estate.

By drawing up a will you:

  • Minimise the risk of family disputes.
  • Speed up the finalisation of your estate.
  • Reduce administration costs.
  • Can set up testamentary trusts for your children and/or other dependents.
  • Can bequeath money to charities.
  • Express your wishes for your funeral.

Writing a valid will in Malaysia

For a will to be valid, it must comply with the formalities set out in the Wills Act.

  • The testator must be of sound mind.
  • The testator must be 18 years or older.
  • The will must be in writing and signed by the testator at the end of it.
  • The testator must sign in the presence of two or more witnesses present at the same time.

Section 5 sets out precise requirements as to the position of the testator’s signature on the document.

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.

What should be included in a 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.

  • The testator’s name, NRIC number, address, and signature.
  • A declaration that it is the last will and testament of the testator – last will clause.
  • The date of writing the will.
  • If relevant, a revocation clause, referring to earlier wills.
  • Appointment of an executor.
  • Distribution clauses give directions on what assets must be distributed to which beneficiaries. Some testators prefer to provide for children as well as children yet to be born. This avoids writing a new will every time a child is born.
  • Appointment of a guardian for minor children – if both parents pass away, any minor child must have a guardian. It is best for you to choose who you want to be the guardian of your children.
  • Directions to settle debts and other testamentary expenses.
  • Attestation clause.
  • Witness names, NRIC numbers, addresses, signatures, and dates of signatures.

When specifying assets, it is essential to include all assets. Think of real property, such as houses, farms, land, building, etc., as well as personal property, such as jewellery, cash, investments, movable property, household items, etc. Assets also include intellectual property, trust property and assets you are entitled to receive in the future.

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.

The role of the executor when you die

The executor is responsible for executing your wishes as per your instructions in the will.

You can appoint anyone who is 18 years old or older. You may appoint up to four executors. A beneficiary may also be an executor.

The executor is responsible for the following:

  • Upon your passing, the executor must identify and locate your will.
  • To be legally allowed to administer your assets, the executor must apply for a grant of probate from the court.
  • They must identify and locate your assets.
  • Advertise in newspapers or social media.
  • Settle any debts and liabilities.
  • Distribute your assets according to your will.
  • Draw up a statement of account.

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 of high value, it could be wise to appoint a professional executor.

How long is a will valid for? 

A will is valid until it is replaced by a new will, revoked in writing, or intentionally destroyed by the testator.

A will is further automatically revoked by marriage or remarriage unless the testator includes an “in contemplation of marriage” clause to prevent the automatic revocation upon a subsequent marriage.

Divorce does not affect the validity of a will.

If the testator converts to Islam, the will is automatically revoked. Estate distribution will happen under the faraid distribution.

When should you consider rewriting your will?

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:

  • Divorce, remarriage, or separation.
  • The birth or adoption of a new child if your will does not provide for unborn or adopted children.
  • Death of a beneficiary.
  • You want to change your beneficiaries.
  • You want to change your executor or guardians, or one of them has died.
  • When there are changes to legislation that could affect your estate or your beneficiaries.

Common grounds to challenge a will

Wills can be contested on any of the following grounds:

  • The testator lacked the capacity to make a will.
  • The wording is ambiguous.
  • The will was written under suspicious circumstances, e.g., duress or undue influence.
  • The content was altered.
  • The signature was forged.
  • It was not properly witnessed.

If the will is declared invalid, the estate will be distributed under the Distribution Act. It will be as if the testator died without a will.

If you want to exclude someone, like a child or a spouse, you should do so expressly to avoid any 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.

Can you write a will without a lawyer? 

Yes, as long as your will complies with all the criteria, 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 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 clear 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.