IN THE words of Benjamin Franklin, “... in this world, nothing is certain except death and taxes”.
A will is a legal document that sets out the way your estate will be distributed after your passing and includes any other matters you may wish to be carried out after your death. This article hopes to answer some frequently asked questions about wills.
What are the requirements for a valid will?
First, bear in mind that the Wills Act 1959 does not apply to individuals professing the Muslim faith. To write a will in Malaysia, you need to be at least 18 years old (except in Sabah, in which case, you need to be 21 years old). Further, your will needs to be in writing and you obviously need to be of sound mind when you draw up your will. There must also be two or more witnesses present at the same time, who must subscribe/witness the will in the presence of the testator (the maker of the will).
Who can be the witnesses of my will?
Your witnesses can be anyone above the age of 18. However, any person who will benefit from your will (beneficiary), or the spouse of a beneficiary cannot be a witness to your will.
What is the role of an executor and a trustee?
The role of an executor is to ensure that the wishes you set out in your will are fulfilled. The executor’s responsibilities include ensuring that your liabilities are paid off and to attend to the distribution of your assets according to the terms of your will.
A trustee has the responsibility of holding your assets on trust for your beneficiaries, and the trustee will be subject to the responsibilities laid out in the Trustee Act 1949.
Typically, executor and trustee are the same person.
Can the executor of my will also be a beneficiary to my estate?
Yes, the executor can be a beneficiary under your will, even if he is the trustee.
What happens if I die without a will?
In that event, your next-of-kin must apply for Letters of Administration to administer your estate. The Letters of Administration will authorise your next-of-kin to attend to the settlement of your liabilities (if any) from the assets of your estate, and to distribute your estate to such beneficiaries as determined in accordance with the Distribution Act 1958 (Peninsular Malaysia and Sarawak) and the Intestate Succession Ordinance 1960 (in Sabah).
What if a beneficiary I have named in my will dies during my lifetime?
In that situation, if you are aware of this fact, it is best to write a new will. However, if that is not done, according to section 19 of the Wills Act 1959, where a beneficiary dies during your lifetime, the portion of your estate meant for that beneficiary will lapse by reason of the death – it will then form part of your “residuary estate” and will be distributed according to the residuary estate clause in your will. However, if the beneficiary is your child or your descendant, section 25 of the Wills Act 1959 states that the allocated assets/portion of the estate will become part of the estate of such a beneficiary.
What is a residuary estate clause?
A residuary estate clause focuses on the distribution of all your assets which are not specifically dealt with by the other clauses in your will – this is a “catch-all” clause.
How can I revoke a will I have previously written if I have changed my mind?
Writing a new will generally revoke any previous will.
Is there a situation where a will is considered to be revoked?
A will is revoked through the marriage or re-marriage of the maker of the will, unless the will is made in contemplation of the marriage or re-marriage. A will is also revoked when it is physically destroyed by the maker of the will (with the intention of revoking it).
Will my estate be subject to estate duty?
At present, the estate of any person who dies on or after November 1991 will not be subject to estate duty.
Can I write my own will without a lawyer?
Yes, you can but it would be best to seek guidance from a legal professional to ensure that the finer points of the will are adequately protected.
This article was contributed by Ashwini Nantha Balan of Christopher & Lee Ong.
Source: The Sun Daily
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