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INTRODUCTION

In Malaysia the following Acts of Parliament deal with the manner and distribution of the
estate of the deceased:

Wills Act, 1959


Distribution Act, 1958; (Distribution [Amendment] Act, 1997, which
amended s. 6 of the DA,)

Probate and Administration Act, 1959

Small Estates (Distribution) Act, 1955

Inheritance (Family Provisions) Act, 1971

WHY SHOULD A PERSON MAKE A WILL


Malaysians tend to get very irritated, upset and distressed and at times even offended
whenever they are asked, Have you written your will? Their common responses are
identical. The normal reply is, Are you thinking that I am going to die soon? One may
or may not die soon, but the reality is that death is certain. When it visits us is uncertain.
It may visit us at any time of the day or night, or at any place. Remember what happened
on September 11, 2001. The 3,000 over people who perished on that day, did not expect
death that morning. They expected to go to work, finish their work, have some meetings
with their friends and then return to the comfort of their homes. But to these 3000 over
people DEATH came. It was unexpected, uninvited and unwarranted. None of them
expected death that day. None of them anticipated death that day. None of them thought
about death that day. Yet they died. Now imagine if they had not written their wills, how
will their properties be distributed. Life goes on even after death. Life goes on for those
who are still living.

ADVANTAGES OF A WILL

1.

The Testator (i.e. the person who makes the will; the female version is
Testatrix) can choose a reliable person or persons (preferably 2) to be the
executor(s) and trustee(s) of his will. If there is no will then some adult members
will have to choose to be the administrator. Malaysians are unique people. They

do not like to go to courts and be subjected to inconveniences, but they want


benefits! Sometimes the estate of the deceased does not get distributed because
the members of the deceaseds family want the properties but nobody wants to
take on the added responsibility of becoming an administrator.

2.

The Testator has control over the manner in which his property will be
distributed. The Testator can give specific directions as to who should get which
of his properties. Such freedom is not available under s.6 DA.

3.

The Testator has control over who will be the recipients of his generosity. He
can choose not to give anything to a particular daughter or son. Therefore if a
particular daughter or son has insulted a father, the father can choose to write
her/him out of his will!

4.

The Testator can choose how much of his assets he wants to give to his family
members, relatives, friends etc. Under the DA, it is not possible to provide for
friends or charities or other organizations.

5.

The provisions of the DA are strict, especially in the case of family members.
For example the word child is defined in the DA as the legitimate child or an
adopted child who has been adopted under the provisions of the Adoption
Act,1952. Any other child will be excluded by the DA, but not so under a will.

6.

The will makes distribution of landed property easy. Otherwise there will be
disputes over the landed properties among the children and between the children
and the surviving spouse.

WHAT IS A WILL?
A will is a written declaration of a persons intentions or wishes, concerning the
distribution , disposition and devolution of his property after his death. A will is a unique
document because it only becomes effective after the Testator (Testatrix) has died.
Therefore it is often said that a will speaks from death. Until death occurs the will has no
legal effect. The will is unenforceable until death. The will can be varied to meet changes
in the testators circumstances and needs. Therefore the will is said to be ambulatory i.e.
not permanent and its provisions are not final until death. Until the Testators death, he
can vary the terms of his will; he can revoke the will; he can deal with the property as he
thinks fit until his death.

WHAT KINDS OF PROPERTIES CAN BE DISPOSED OF BY A WILL?


All kinds of properties can be disposed off by a will. Properties can be categorized under
the following categories:

movable/personal (such as money, jewellery, cars, shares, furniture, paintings,


sculptures, stamp collection, books, clothes, pens, pots and pans and all other
household items and other chattels );

immovable/real (such as houses and land); and

intellectual property (copyright, patents, etc)

money kept in the EPF account will not be governed by the provisions of the
will. The money will be distributed to the persons nominated as beneficiaries
in the EPF nomination form. Therefore ensure that you have changed the
beneficiaries to your EPF money NOW!!!

FORMALITIES FOR MAKING A VALID WILL

The formal requirements for making a valid will are found in the Wills Act, 1959 and the
formalities must be strictly observed.

- The will must be in writing.


-

The Testator must be of the age of majority .This means that the Testator must
be 18 years and above.

The Testator must be of sound mind when he makes the will.

The Testator must have property to dispose off either at the time of making
the will or which property the Testator may become entitled to subsequent to
the execution of the will.

The will must be signed at the foot or end of the will by the Testator or by
some other person in his presence and by his direction.Therefore any
provision stated below the signature is invalid.

The Testators signature must be made or acknowledged by the Testator in


the presence of 2 or more witnesses present at the same time.

The witnesses shall subscribe the will in the presence of the Testator.

Publication of the Will is not necessary.

Beneficiaries and their spouses cannot be witnesses to the will. In such an


event, the benefits due to the beneficiary or his/her spouse will become utterly
null and void. But an Executor can be a witness.

Any alterations, defacement, cancellation or scratches shall not be valid unless


initialed by the Testator and attested by the witnesses. Therefore do not make
any alterations, cancellations or scratches. Make as many drafts as needed
until you are satisfied. Then destroy the drafts.

PRIVILEGED WILLS
The law has also made provisions for certain groups of people to make privileged wills.
The provisions of sections 4, 5 and 6 do not apply to members of armed forces in actual
military service, a mariner or seaman being at sea. Therefore these people can make valid
wills even though they may below 18 years old; the will can be oral (i.e. told to another
member of the armed forces or navy or another seaman) and if written, need not be
attested .

REVOCATION OF WILLS
A testator can revoke his will any number of times. It is the last will that will be
considered as the valid will provided the formalities required for the making of a valid
will can be found.

Revocation of a will occurs in the following manner:


Revocation by a subsequent will
It is always prudent and wise in preparing a new will ( even if it is the first will) to insert
a clause revoking all former wills. This will avoid a problem if there are 2 wills and the
court will have to decide which of the clauses in the earlier will have been revoked by the
later will.
Revocation by destruction
There must be an intentional destruction of the will by the Testator or by some other
person in his presence or under his direction. Accidental destruction does not revoke a
will. In Cheese v. Lovejoy the Testator after writing upon a part This is revoked threw
the will in a corner of his study. The housemaid preserved it until the Testators death.
The Court held that the will had not been destroyed and so could be admitted to probate.
Revocation by subsequent marriage
Where a person makes a will and then marries, his /her will is revoked by the marriage
and becomes invalid. But a will made in contemplation of a marriage shall not be revoked
by the solemnization of the marriage contemplated. Let me give you 2 scenarios to
illustrate this legal principle:

a) Mr. X/Miss X, while being single make a will. A few years later Mr.X /Miss x
marries. He forgets about the will he has made earlier. He then dies. The will that
he made is invalid and is deemed to have been revoked upon his marriage.
Therefore he dies intestate and the provisions of the Distribution Act will now
apply.

b) Mr X / Miss X knows he/she is getting married to Miss Y/ Mr. Y in July. In


contemplation of that marriage Mr. X / Miss X makes a will. That will is a valid
will.

Doctrine of Dependant Relative Revocation


If a revocation of a will is conditional, it will only be effective when the revocation is
fulfilled. E.g. when a testator revokes his will with the intention of making a new one, but
forgets to do so, then the revoked will remains valid and will be regarded as the will of
the Testator. The court will make a ruling declaring the original will (though revoked) as
a valid will if the Court is satisfied that the Testator did not intend to revoke his will
absolutely but merely revoked it as a step towards making a new will.

VALIDITY OF WILLS
What makes a valid will? This issue of validity is closely tied to the items discussed
under the heading FORMALITIES FOR MAKING A VALID WILL.

Testamentary capacity
The Testator must be of the age of majority except for persons who are entitled to make
privileged wills.

Of sound mind
The testator must understand the nature and extent of his property, the beneficiaries who
are to be the recipients of his generosity and the disposition that he is making.

Not of unsound mind


Persons of unsound mind include defective persons as defined under the Mental
Disorders Act, 1952 as well as persons who have been certified and detained in a mental
hospital or a person of sub normal mind.
If at the time of making a will, a testator was through disease so deficient in memory that
he was oblivious to the claim of his relatives, then the will is invalid. In Re Ng Toh Piew
(deceased) the testator made the first will in 1947 and he was found to be of sound mind.
In 1949 when he made his second will he was extremely ill and failed to provide for his
son as he had done in the earlier will. He also told one of the witnesses that he had no
son. The court declared the second will as invalid.
A testator though frequently of unsound mind can nevertheless make a valid will during a
lucid spell. In Angullia v. Rahimaboo the Testator had been pronounced insane in 1910,
1918, 1924 and 1934. During a lucid period in 1938, the Testator made a will giving
most of his estate to charity and died 3 years later. The doctor and lawyer who attested
the last will deposed to the fact that the testator was physically weak and mentally dull,
yet was of sound mind, memory and understanding. The testator died of a diabetic attack.
The court held that on the evidence as a whole the will had been made during a lucid
interval.

Fraud, Fear, Coercion and Undue Influence


Fraud: A will that is obtained by fraudulent means in order to benefit certain
beneficiaries will be invalid. E.g. By lying to a person to attest a will by claiming that it is
a receipt, etc.
Fear: Where a person is induced by threatening behaviour on the part of another to write
a will, then such a will is invalid. Fear also covers situations where there is duress, e.g. A
wife constantly nagging her husband to write a will in her favour or vice versa!
Coercion and Undue Influence: These occur where the testator happens to be rich, old
and infirm and is linked to a young lady or vice versa.

VARIATIONS TO THE PROVISIONS OF A WILL

S.3. Inheritance (Family Provision) Act, 1971


Where a person dies domiciled in Malaysia leaving behind a wife/husband/ an unmarried
daughter or infant son, who suffers from some mental or physical inability and is
incapable of maintaining her/himself, then if the court on an application by or on behalf
of the wife/husband/ daughter/son, is of the opinion that the disposition of the deceaseds
estate effected by his will is not such as to make reasonable provision for the maintenance
of that dependant, the Court may order that such reasonable provision as the Court thinks
fit shall be made out of the deceaseds net estate for the maintenance of that dependant.

Deed of Family Arrangement


Where all the beneficiaries are in agreement then a Deed of Family Arrangement can be
made to circumvent the provisions of the will. In a case that I handled, the person had a
number of properties and he prepared a will bequeathing the properties to all his children.
But the children wanted a variation to be made and to sell off one of the properties and to
settle the outstanding loan on other properties. A deed of arrangement was drafted and
signed by all the beneficiaries and an application was made to the High Court for the
properties to be distributed pursuant to the Deed of Arrangement.

PRACTICAL GUIDELINES WHEN MAKING A WILL


Let us consider some of the practical guidelines for making a will;
1.

Contact a lawyer whom you know or who is reliable.

2.

Bring along your identity card.

3.
List all the assets that you have: land, houses(it is advisable to bring copies of the
title to these properties), car(s) (registration card), shares, jewellery, tv, radio, hi-fi,
silverware, brassware, heirlooms, books, stamp / first day cover collection, badge
collection , watches, pens and other collectibles such as toy dogs, bells, etc, bank
accounts and other sundry items in the house can be described as chattels.

4.

Identify the members of your family, especially your spouse (bring along
his/her identity card ) and the children to whom you want to provide for in your

will. Make sure their names are correctly spelt. It would be prudent if you can
produce photocopies of their identity cards or birth certificates.

5.

Identify other members of your family, such as brothers, sisters, nephews, nieces,
uncles and aunts whom you may want to remember as well as any friends whom
you may want to benefit by giving them certain items that form part of your
estate. Ensure that their names are spelt correctly. If you want to make gifts to
certain organizations ( such as PAWS, SPCA, WWF, or welfare organizations or
religious institutions, etc) ensure that the names of these organizations are
correctly spelt and can be identified.

6.

Contact your executors and obtain their consent.

7.

Get 2 witnesses. In most cases, the lawyer who drafts the will, would be one of
the witnesses. But this is only a practice. In reality any 2 persons who are not
beneficiaries under the will and not their spouses can be witnesses.

8.

Go over the draft copy until you are satisfied and then make fair copies. But
destroy the draft copies.

9.

Seal the will and the copies and keep them in a safe place. Inform the executors
where it is kept ( e.g. in a safety deposit box in a bank, in a drawer or in a safe).

10.
Remember you do not have to inform your beneficiaries what you have
bequeathed them. You will have to decide whether you want to inform your family
members that you have made a will.

ONE FINAL COMMENT

A testator is not prevented from dealing with his property in any way he sees fit,
subsequent to the making of a will. Until the testator dies, he has a right to deal with his
property in any way he likes. Therefore a testator can sell his houses(s), though he has
bequeathed it to his wife or child. The result will be that if a particular item of property is
no longer present because it has been disposed off by the Testator, then the beneficiary
will not receive that particular item since it no longer exists as the testators property.
Alternatively a testator may acquire new assets or properties after the making of a will
and if these items are not included n the will, then the law of intestacy will apply to these
items of property that have not been dealt with by the testator in his will. Therefore it is
prudent to revise your wills now and then.

WHAT ABOUT INTESTACY?


Intestacy occurs when a person dies without leaving a will or a valid will. The
distribution of his estate is governed by the provisions pf the Distribution Act ,1958,
especially the amendment brought about by the Distribution (Amendment) Act, 1997 to s.
6 of the main Act. Let us look at how the distribution will be done pursuant to s. 6
Where either a husband or wife dies leaving:

Relationship

Share

Spouse only

100%

Spouse and parent(s)

- spouse
- parent(s)

Issue only

100%- issue

Parent (s)

100% - parents

Spouse and issue(s)

1/3 spouse
2/3 issue(s) living

Issue and Parent(s)

2/3 issue
1/3 parents

spouse, issue(s) and parent(s)

- spouse
- issue
- parent(s)

no spouse, no issue, no parent(s)

surviving brothers & sisters in equal


shares;

grandparents in equal shares

uncles and aunts in equal shares

great grandparents in equal shares

CONCLUSION

It is obvious that the provisions of s.6 DA do not provide for flexibility in disposing of
the estate of the deceased. There are no avenues for making provisions to friends, or
charitable organizations. Nor can the intestate choose how much he wants to give to a
particular member of the family nor what he wants to give. Therefore it is prudent to
make a will while you are alive so that the living can get on with their lives without much
squabble.