Kelly Yong Shu Xhuan

Q:     What is a Will?

A:     A Will is a written document signed by the person making the Will (“Testator”) leaving the estate of the Testator to the beneficiaries named in the Will.

The Testator will usually name a person as the executor in his Will who is vested with the responsibility to administer the estate of the Testator in accordance with the terms of the Will.

The Testator will also usually specify the portions or percentage of his estate to be given to the beneficiaries. At times the Testator may also make arrangement for funeral arrangement in the Will.

Q:     How to ensure that your will is a valid will?

A:     For a will to be valid, the following requirements must be satisfied:

• The testator (the person making the will) must attain a minimum age of 18 (Section 4 of Wills Act 1959);
• The testator must be of sound mind (Section 3 of Wills Act 1959);
• The will must be made in writing and signed (Section 5 of Wills Act 1959); and
• There must be two witnesses present at the time of signing of the will. The witnesses cannot be a beneficiary or the spouse of a beneficiary in the will.

Q:     What are the benefits of having a will?

A:     There are various benefits available only to a person died leaving a valid Will as opposed to someone who have died without leaving a valid Will and few of the important benefits are illustrated as follow:

• (i) Absolute freedom to choose your beneficiaries and to determine their entitlement
• (ii) Appoint and outline powers of an executor
• (iii) Set up a testamentary trust
• (iv) Absolute freedom to choose your guardian to take care of your minor children
• (v) Minimise family conflict or reduce the possibility of conflict among the beneficiaries because everything has been spelled out clearly from naming the executor to beneficiaries’ entitlement.
• (vi) Lower legal cost to obtain the grant of probate from the High Court.

Q:     What happens if I die without a will?

A:      If you do not have a will at the time of your death, you are said to have died intestate. Your estate will be distributed according to a designated formula in the Distribution Act 1958 unless you are a Muslim in West Malaysia and Sarawak or is a native of Sarawak. If you are domiciled in the state of Sabah, then the Intestate Succession Ordinance 1960 will apply. Here are some disadvantages dying without a will:

• (i) The manner of distribution of assets will be dictated by the Distribution Act 1958 and not according to your wishes
• (ii) Possible family disputes among the beneficiaries
• (iii) You lose the right to appoint an executor
• (iv) You lose the right to nominate a guardian of your choice for your minor children for your minor children
• (v) Lengthy distribution process
• (vi) The legal cost to obtain the grant of Letter of Administration from the High Court is higher than the grant of probate.

Conclusion

In conclusion, it is important for you to have a will in order to protect the interests of your loved ones. Additionally, it is always advisable to consult a lawyer first to ensure that your will is in compliance with all the necessary statutory requirements.