SECURE YOUR LEGACY: WHY CRAFTING A WILL IS A VITAL ACT OF CARE

 

A.    Introduction

A Will is more than just a document—it’s a way to ensure your loved ones are cared for, your assets are distributed smoothly, and your final wishes are respected. While drafting your intentions may appear straightforward, creating a legally valid Will demands meticulous planning to avoid disputes and ensure everything is carried out as you intend.

 

In this article, we explore the essentials of preparing a Will in Malaysia, its benefits, the legal requirements, and when seeking professional guidance can help safeguard your legacy.

 

B. What is a Will?

A Will is a legal document where an individual, known as the testator, outlines how their assets should be distributed and who will take care of their minor children (if any) after their death. It ensures that the testator’s directives are executed and offers clarity to loved ones during challenging times.

 

In Malaysia, the rules for a Will differ based on religion:

·     For non-Muslims, a Will is governed by the Wills Act 1959.

·     For Muslims, inheritance is guided by Syariah law through a Wasiat, which serves a similar purpose but follows different legal principles.

 

      C. Benefits of Having a Will

Drafting a Will simplifies the administration of your estate and reduces potential conflicts. Key advantages include:

 

·         Avoiding potential family disputes over property and assets.

·         Saving time and costs in distributing assets.

·         Ensuring assets are distributed according to the testator’s wishes.

·         Nominating beneficiaries and specifying their share of the estate.

·         Appointing a trusted executor or trustee to manage the estate.

·         Nominating a guardian for minor children (if any).

 

      D. Legal Requirements for a Valid Will in Malaysia

Under the Wills Act 1959, a valid Will must meet the following criteria:

(a)   The testator must be at least 18 years old[1].

(b)   The testator must be of sound mind[2].

(c)    The Will must be in writing[3].

(d)   The testator must sign the Will in the presence of at least two independent witnesses.[4].

(e)   Both witnesses must sign the Will in the simultaneous presence of the testator and one another.[5].

(f)     Witnesses to a Will must be independent, preferably over 21 years old, and cannot be beneficiaries, as a beneficiary who witnesses the Will may risk invalidating their share of the inheritance[6].

 

      E. What happens if a person dies without a will?

If a person dies without a Will, their assets are distributed under the Distribution Act 1958. In this regard, the next of kin must apply for a Letter of Administration and appoint an administrator. This process requires unanimous consent from all legal beneficiaries and can take between two to five years to complete. During this time, the distribution of assets is governed by statutory rules, leaving the deceased without control over how their estate is divided. This process is significantly slower and less flexible compared to the faster, more straightforward distribution that occurs with a valid Will.

 

Thus, drafting a Will ensures your wishes are respected and minimizes administrative delays.

 

      F. Special Considerations: KWSP and Insurance Policies

      Assets such as KWSP/EPF savings and insurance policies are distributed based on nominations made during your lifetime. These nominations take precedence over the instructions in your Will, meaning the designated nominee will receive the funds directly. If no nomination is made, these assets will be distributed according to your Will or, in the absence of a Will, under the Distribution Act 1958.

      G. Revocation of a Will

A Will can be automatically revoked under the following circumstances:

 

1.    Marriage or remarriage, unless the Will explicitly accounts for the anticipated marriage.

2.    Conversion to Islam, as inheritance laws will follow Islamic principles.

To avoid complications, it is advisable to draft a new Will in such situations.

 

      H. Can a Will Be Challenged?

Despite careful drafting, a Will can be contested by interested parties for reasons such as:

·         Forged or fraudulent signatures.

·         Claims of undue influence or unsound mind.

·         Improper witnessing of the Will.

·         Existence of a newer Will.

 

A successfully challenged Will may be declared invalid, leading to intestate distribution under the Distribution Act.

 

      I. Conclusion

Drafting a Will is a fundamental step in safeguarding your legacy and providing peace of mind for your family. While it might seem tempting to take shortcuts, investing in professional guidance ensures your wishes are clearly outlined and legally protected. By taking the right steps now, you can avoid future complications and ensure that your loved ones are cared for as you intend. Don't leave your legacy to chance—draft your Will today and ensure a smoother, more secure future for those you care about.

* This article is for general informational purposes only and does not constitute legal advice. For tailored legal guidance, feel free to contact us: The author, Ng Jack Ming (njm@jclegal.com.my) or partner, Yap Jia Cheng (yjc@jclegal.com.my).