Frequently Asked Questions (FAQ)

FAQ ON WILL

GENERAL

Q. What is a Will?

A Will is a legal instrument, which a person sets out his/her wishes as to the distribution of his/her properties (when comes to property, it is not just limited to landed property, it includes your personal properties like shares, cash, jewelries etc.) after he/she dies. As a Will only comes into effect after the testator dies, the testator can create a new Will to override his/her old Will during his/her lifetime.

A Will is simply defined as a legally binding document whereby an individual is able to state his wishes as to the distribution of his assets after his lifetime. It will supersede the Distribution Act 1958 where you can control your distribution to your loved ones.


Q. Do you need a lawyer to prepare a Will?

The laws of Malaysia do not dictate that a Will must be prepared by a lawyer. As long as it is in written form and fulfil the requirements of the law, it is considered as a valid and legitimate Will.


Q. Why do I need to make a will?

Why can’t I leave the distribution of my assets (or estates) to the law?

Yes, you can but you may not like the way the Distribution Act 1958 (as amended by the Distribution (Amendment) Act 1997) (“the Act”) determines how your assets are distributed and the lengthy and arduous process.

When you do not write a Will, you are in effect letting distribution follow what is stated in the Act. This is called intestacy and requires an application for a letter of administration, which takes a longer time because of additional legal requirements to be complied with.

With a Will, the time to complete distribution is considerably shortened and you avoid the need for sureties/guarantors and the need to search for and agree on a reliable administrator. You can also ensure that the welfare of your children are taken care of by appointing a guardian while you still retain control over your assets even after writing your Will.


Q. Is a Will compulsory? What is the importance and/or benefit of having a Will?

A person can choose to die testate (with a Will) or intestate (without a Will). For those who die intestate, the distribution of the deceased’s assets will be following the way as provided in the Distribution Act 1958.

The beneficiaries of a person dies intestate would need to apply for a letter of administration in which the process might be lengthy and cost incurred might be higher. Sometimes, who should be appointed as the administrator(s) of the deceased’s estate would become an issue amongst the beneficiaries.

With a Will, the period of time to complete the distribution of assets would considerably be shorter and there would not be issue of who should be the executor(s) as a Will will normally specify who should be the executor(s) of the deceased’s assets.

If a person dies intestate, Section 35 of the Probate and Administration Act 1959 requires the administrator to give administration bond with two sureties, unless such administration bond is dispensed with by Court. If there is a Will, such requirement does not apply. With a Will, you can also ensure that the welfare of your minor children are taken care of by appointing a guardian while you still retain control over your assets even after writing your Will. It is also important to have a will when you do not have a spouse, child, parent, sibling, grandparent, uncle or aunt, great grandparent and/or great grand uncle or aunt, as your assets will go to government if you do not have a Will. This is provided under the Distribution Act 1958.


Q. Why do I need a will as I do not have many assets anyway to pass on to my family upon my death?

This is all relative, strictly speaking.

Regardless of the value of your assets, they are important to your loved ones especially those who depend on you.

Writing a Will is about creating a legacy of love and protecting the little treasures you have. You can also decide the beneficiaries of your choice, when to benefit them and how much to benefit them.

Moreover, over the years your assets may grow and our Will can cover future acquired assets as well as future inherited assets without re-writing it if you do not wish to do so. Besides, if you have young children, you can also appoint guardians for them through a Will. And writing a Will shall ensure that your beneficiaries can inherit your estate sooner.


Q. I do not have many assets, so do I still need a Will?

When you do not have an immovable property, your asset will not be considered as “small estate” as defined under the Small Estate (Distribution) Act 1955, which means your beneficiaries would have to go to court and apply for a letter of administration (in normal circumstances) in which the process might be lengthy and cost incurred might be higher.

When you create a Will, you can ensure your loved ones would inherit your assets according to your wish and also minimize any possible quarrel or dispute amongst the beneficiaries. If you have minor children, you can appoint the guardian(s) as per your wish through a Will. When you do not have a spouse, child, parent, sibling, grandparent, uncle or aunt, great grandparent and/or great grand uncle or aunt, you should make a Will even though you do not have much assets as your assets will go to government if you do not have a Will.

Anyway, your assets may grow over the years. A will can cover the assets that you gain in future.


Q. I am in my 30s/40s and I consider myself too young to write a Will?

Life is unpredictable. The one you see today might not live tomorrow. As long as you are eighteen (18) years old and above, it is wise for you to write a Will so that you can protect your loved ones from hassle and delay.


Q. Do I need to write a Will when I do not have any beneficiary in mind to give my assets to?

Even if you do not have any family members that you would want to give to, you can always consider charitable contribution to orphanages, old folks home, various associations for the blind, homes for disabled children, homes for the destitute or religious organizations.


Q. Do I need to write a Will now as I am still undecided on how to distribute my assets to anyone?

As stated earlier, life is unpredictable. No matter how few assets you gain, as long as you have assets, it is important to write a Will to protect your loved ones.

If you are still unable to decide on how to distribute your assets, you can list down all your assets, estimate the value of each item and list down those you would want to bequeath your assets to. From there, you will be able to get an idea on how to distribute your assets to your loved ones.

In any event, if you change your mind later on, you can always revoke your Will and write a new one. As a Will will only start to have effect upon the death of the testator.


Q. Can I write my own will or trust?

Unless you are well verse with the laws, it would be risky for you to write Will by your own.


Q. Who can I appoint as the trustee or executor of my will?

Anyone who is not a minor (18 years old and above), or of unsound mind, can act as a trustee or executor.


Q. Who can be the witness of my will?

You need to sign your Will with the presence of two independent witnesses who cannot be the beneficiary or the spouse of the beneficiary of the will.


Q. Who is testator?

Testator is the one who makes a will (which is YOU).


Q. What happen to my Will if I get married subsequently?

Your Will will be revoked automatically upon your marriage or remarriage unless the Will expressly provides for a ‘contemplation of marriage’ clause. However, a divorce will not affect a Will unless the testator remarries subsequently. Hence, you can write a new Will.


Q. What happen if I die without a will?

If you don't make a will when you die, the Wills Act 1959 [Act 346] will determine what happens to your property or estates.

Generally, it will go to your spouse and children or, if you have neither, to your other closest relatives or next-of-kin. If no relatives can be found to inherit your property, it will go to the Government of Malaysia.

In addition, in the absence of a will, the Court will determine who will care for your young children and their property if the other parent is unavailable or unfit to do so.

In short, if you die without a will, your property and assets (i.e. the estates) may not be distributed and passed on to the persons you wish or distributed in the proportion or manner you desire.

Hence, it is important for you to start a will right now!


Q. Can someone challenge my will after I die?

Yes, it can be.

For example, a spouse or children of a deceased who dies testate (with a Will) can challenge the Will in accordance with Section 3 of Inheritance (Family Provision) Act 1971 when the deceased did not bequeath any asset to his/her spouse and children. A will can also be challenged if the Will does not follow the Wills Act 1959.

Therefore, it is important to make sure that the Will you make is valid in accordance with the laws of Malaysia. For example, when you sign the Will, you must be of sound mind; your Will must be witnessed by two independent individuals etc. As long as a Will is valid in accordance with the laws of Malaysia, it is not easy to challenge it.


FAQ ON WILL

PRODUCT

Q. What is this SmartWills online will writing?

You can now write a Will online quickly and conveniently by accessing the ‘Online Will Writing’ link from SmartWills website at www.smartwills.com.my and following the instructions online.

Decide on the package you prefer (Basic or Comprehensive) and you're your online payment before proceed with data entry.

Get ready and enter your estate data online following the Questionnaire and decide on how you want to distribute your estates to your beneficiaries. Once all the necessary data entered are confirmed by you and validated by the system, a copy of DRAFT WILL is generated and you can print it out yourself.

Upon completion of final version of WILL, the Will hard copy will be made ready by SmartWills and courier to you for signing.


Q. Who is the company offering this service?

This online will writing service is provided by SmartWills, an online platform which is operated and owned byMy Smartwills Sdn Bhd (SSM No. 202101002960) (1403258-M).


Q. Can I use this online service to write a Will?

Any non-Muslim who is of sound mind, a Malaysian Citizen; 18 years and above in Peninsular Malaysia and Sarawak and 21 years and above in Sabah; and able to understand the nature and purpose of making a Will may use our online service to write a Will legitimately in Malaysia.


Q. What are the fees I have to pay for this Service?

A one-time package fee as stated in the Pricing section in our website is payable for each Will. All fees specified NOT include any government taxes (including but not limited to the new SST if applicable), which will be charged separately [Fee and Charges]


Q. What are my duties under the terms & conditions of this service?

1) You must read, understand and strictly follow all necessary instructions in SmartWills and pay the Fee and Charges.

2) You must ensure all information provided and entered is correct, clear and comprehensive.

3) Please be reminded your Will must be made according to the Wills Act 1959 (or the Wills Ordinance Sabah Cap. 158).

4) If you are not clear with the terms and conditions, you are advised to seek separate legal advice on the matters relating to your Will, or you can seek the legal advise from our Panel Lawyers listed in our website.


Q. What happens if I fail to fulfill my duties?

We may not be able to process your subscription or your Will may be rendered invalid under the law.


Q. What are the risks with using this SmartWills online service?

The risks associated with SmartWills online transactions apply. Your Will may be rendered invalid under the applicable law if you unable to comply to the Terms and Conditions, prior to proceeding with the Online Will Writing service.


Q. What are the risks inherent in writing a Will?

A will does not supersede an earlier nomination, i.e Insurance, Employee Provident Fund (EPF) if any. If your named beneficiary in the Will is below the age of 18 years old at the time of your deceased, his/her share will be hold on trust by the appointed guardian for administration until he/she reaches 18 years of age.


Q. How do I subscribe to this online will writing service?

1) You must have a valid SmartWills username and password upon a successful registration (and registration is free).

2) You must have available all relevant documents such as heir(s)/beneficiary(ies) full name and NRIC/Passport number, executors’ full name and NRIC/Passport number, etc.

3) Login to Smartwills.com.my

4) Click ‘Online Will Writing’.

5) You must read, understand and agree to the Terms and Conditions and consent to Disclosure before continuing.

6) Select ‘Will’.

7) Follow the instructions displayed.


Q. Who can be my Executor?

Anyone who is 18 years old and above, of sound mind, consents to such appointment and is able to administer your estate.


Q. How many Executor(s) do I need for my Will?

You need at least one (1) executor. However, you must appoint at least two (2) executors if a beneficiary is below 18 years of age.


Q. Who can be my witness?

Anyone who is 18 years old and above and is not named as a beneficiary / heir in your Will.


Q. What if I have minor heirs or beneficiaries?

If you have any minor heirs or beneficiaries who are below 18 years of age and you wish to appoint him/her as a guardian, please contact our Online Chat Support or e-mail to support@smartwills.com.my for assistance.


Q. How does the Will provide for distribution of assets?

The Service only allows you to distribute your assets in percentage [%] proportion. Should you wish to list all your assets or provide for specific distribution or have other requirements, please contact our Online Chat Support or e-mail to support@smartwills.com.my for assistance.


Q. What is meant by “Last Will & Testament”?

The Will you receive when duly signed and witnessed will automatically revoke any previous Will that you have written and will be considered as your last Will unless revoked by a subsequent Will.


Q. Can I re-write my Will?

You can re-write your Will at any time should you think necessary i.e change of beneficiary or change of distribution by re-apply online as fresh application. You will be charged the same package fee for every re-write as if it is a new will writing request.

Please contact our Online Chat Support or e-mail to support@smartwills.com.my for any assistance on your re-write request.

All fees specified NOT include any government taxes (including but not limited to the new SST), which will be charged as a separate item in the invoice.


Q. Can I cancel my subscription for this service?

Yes. You can cancel your subscription at any time before payment is made. If payment has been made, no refund is allowed.


Q. What I need to do if there are changes to my contact details?

Please inform us on any change to your contact details as soon as possible. You can update your contact details at your SmartWills online login account, or you may e-mail to support@smartwills.com.my for assistance.


Q. When can I receive my hard copy will?

SmartWills will make available the Will to you within five [5] working days from you having provided complete and accurate information and made prior payment of the Fee.

We shall courier to your postal address given during the online application. If you did not receive your application after five (5) working days, please contact online support or e-mail to support@smartwills.com.my for assistance.


Q. Where can I get assistance and further information?

You can always visit our Online Chat Support at our website www.smartwills.com.my or email us at support@smartwills.com.my.


Q. Why choose our service?

Convenient: Suitable for Malaysian who is too busy to visit any nearest Will Making agency; you can make your Will at anytime and anywhere;

Fast: You can get your Will done quickly within a matter of hour;

User-friendly: Yes. The user interface and user experience (UX) of our online service is simply user-friendly, take less then 5 steps to get a Will up;

Low-cost: Yes, we price our service at a reasonable price that is competitive in the market now

Trusted: Our online will is drafted by qualified estate lawyer and its contents are regularly reviewed and updated;


Q. Am I eligible to use this service?

Before you proceed to use our online service, it is crucial for us to ensure that you are eligible to use our service under the law. Please confirm the following:-

a) I am a Malaysian;

b) I am 18 years old and above (for Peninsular Malaysia and Sarawak) and 21 years old and above (for Sabah);

c) I am not a Muslim;

d) I am of sound mind;

e) I am able to read and write;

f) I understand that by completing and executing this Will, this Will shall be my Last Will and Testament which will effectively revoke all my previous wills.

g) I have read Terms and Conditions herein and fully understand and agree with the said Terms and Conditions.