Q1. What is a Will?
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/her estate after lifetime.
Q2. What is considered a legally binding Will?
According to the Malaysia Will Act of 1959, a legally binding Will must fulfill the following requirements :
- The testator (the one who makes a will) must have attained age of 18 years old and above when writing the will.
- The testator must be sound minded when making the will.
- The Will must be In written format and has the testator signature.
- The Will can be written In any language but preferably in English.
- The Will must have 2 witness’s signatures and the testator and witness must sign the Will at the same time.
Q3. Does the Will need any stamping?
No. A legally binding Will does not need any stamping at the LHDN office.
Q4. What Act that governs a Will in Malaysia?
In Malaysia, a non-muslim Will is governed by the Wills Act 1959 while a muslim Will is governed by the Shariah Law.
Q5. Why do I need to make a Will?
You make a Will for the following reasons:
- There is no centralised system for your beneficiaries to check the individual estate
- There is no legal way that ensures the estate is transferred automatically to your beneficiaries.
- There are more than RM90 billion worth of unclaimed assets held by Malaysian trust authority
- Up to more than 90% of Malaysian adults are qualified to write a Will but they do not take any action on it.
Q6. Why do I need a Will as I do not have many assets to pass on to my family upon my death?
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 treasures you have. Moreover, over the years your assets may grow and your Will can cover future acquired assets and future inherited assets without re-writing it if you do not wish to do so.
Q7. 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 from inheriting your estates to them.
Q8. Is a Will compulsory? What is the importance and benefit of having a Will?
A Will is not compulsory (by the law) but is essential for you to:
- Distribute your assets according to your wishes and not dictated by the Distribution Act 1958
- Decide who is the Executor(s) for your Will
- Decide who is the Guardian of your children (if below 18 years old)
- Avoid any hassle or delay in the court procedures for the distribution of your estates
- Minimize any family conflict for the inheritance of your estates
Q9. 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 relevant laws, it is considered as a valid and legitimate Will.
Q10. I do not have many assets, so do I still need a Will?
Assets not only cover physical forms such as houses, shops, lands (i.e. properties), jewelries, motor vehicles but also include cash in bank, cash in hand, investments, EPF savings, insurance, copyrights, trademarks, shareholding and even any assets in digital form such as Bitcoins and domain names. All these physical and non-physical assets can be distributed according to your wish in a Will document. You can also decide the guardian of your child, if they are minor, who are your beneficiaries.
In summary, if you deceased without a Will, your assets (i.e. your estates, in any quantities and in any forms), your children or beneficiaries future welfare will depend on the judgement of the Court in accordance to the DIstribution Act.
Q11. What happen if I die without a Will?
In legal terms, a person who died without a Will is known as “Intestate”. Their assets will be distributed according to the Distribution Act 1958 (For non-muslim in West Malaysia). Your family may not know the exact details of all the assets you possess. Your assets may not be distributed and passed on to the persons you wish (your designated beneficiary) or distributed in the proportion or manner you wish. Hence, it is important for you to start a Will now.
Q12. Who is eligible for making a Will in Malaysia?
Any person who fulfils the below requirements is eligible to make a Will:
- Aged 18 years old and above
- Sound minded
- Malaysian who own assets in Malaysia and/or overseas, or foreigners (Non-Malaysian) who own assets in Malaysia
Q13. Who can I appoint as the Executor of my Will?
According to the Will Act 1959, anyone above the age of 18, sound-minded and not a bankrupt person, are eligible to become an executor of a Will. You are allowed to amend or change the executor anytime before your death. The beneficiary of your Will is also allowed to become the executor too. Before appointing the executor, you must obtain the consent from them to avoid any refusal or dispute after that.
Q14. What are the Executor responsibilities to my Will?
Your Executor will act as a trustee to your Will and need to take care of all your assets before the distribution to the beneficiaries. If any expenses incurred during the Will execution, he/she is allowed to claim for the expenses, if reasonable, under The Trustee Act 1949. You need at least one (1) executor to your Will. However, you must appoint at least two (2) executors if the beneficiary is below 18 years of age.
The Executor’s responsibility in your Will include the following:
- Locate the Original Will
- Apply Grant of Probate and execute the assets after that
- Gather all the assets
- Pay all the outstanding debts or taxes
- Distribute the assets accordingly to the beneficiary
Q15. How to execute a Will?
Q16. Who can be the Guardian?
According to the Guardianship of Infants Act 1961, on the death of one of the parents of a child, the surviving parent, if any, shall automatically become the guardian of the child below the age of 18. Therefore, you need not appoint your spouse as the guardian of your child in your Will.
Any person can be the guardian to your infant child, if the following requirements are fulfilled:
- Age 18 and above
- Sound minded
- Able to take care of the child below age 21
- Able to support the basic needs of the child below age 21
Where the child reach the age of 21 years old (non-muslim), the guardianship shall be terminated automatically.
Q17. Who can be the beneficiary of my Will?
In fact, you can assign ANYONE to become the beneficiary to your Will, including:
- Anyone with any relationship to you
- The Executor of your Will
- A mentally disabled person (require an appointed Guardian or an Attorney)
- Children below the age of 18 years old (require an appointed Guardian)
With the Exceptions of:
- A person with bankruptcy status in force
- The Witness of your Will
- Any immediate family members to the Witness
Q18. What if the beneficiary deceased during the execution process?
In that case, the Will execution process will take longer than expected. Depending on the situation,
a) If the beneficiary did not survive 7 days after the Will maker pass away - the said portion will be distributed equally amongst other beneficiary(ies) or if there is none, the said assets will fall under residuary assets.
b) If the beneficiary survive more than 7 days after the Will maker pass away - the beneficiary will still get the portion and the said assets will be distributed according to the beneficiary's own Will, or if no Will is written, the said assets will be distributed according to the Distribution Act 1959.
Q19. Who can be the Witness to my Will?
The witness of your Will must fulfil the following requirements:
- He/she is not the beneficiary
- He/she is not the immediate family of the beneficiary
- He/she must be aged 18 years old or above
- He/she must be sound minded
- He/she is a third party to the testator (for example: friends, Will Writer)
Q20. What is the responsibility of a Witness?
The responsibility of a Witness of a Will:
- To ensure the Testator is sound minded when writing the Will
- To ensure the Testator sign the Will himself/herself or do a thumbprint or instruct another person to sign on behalf
- To ensure the Testator sign on every page and the last page of the Will with details
- Do not need to know or understand the contents of a Will
Q21. Do I need to include any overseas assets I own in my Will?
Yes. A Will allows you to list out all the assets that you own, in Malaysia and overseas, so that your family or beneficiaries have the full knowledge of all your assets to make the distribution process easier and less disputable in the future.
If you have any overseas assets, besides including it in the Will you make in Malaysia, you also need to write another Will in that particular country. This is because every country has different laws on will, inheritance and distribution of estates to the beneficiaries of a deceased person.
Q22. Can I revoke my own Will?
Yes, you can revoke your Will at any time. A Will will be revoked automatically under the following conditions:
- when you write a new Will.
- when you get married or remarried.
- when the original Will is destroyed.
- when you revoke the Will voluntarily with written consent and witnessed by 2 persons (witnesses).
Note: when you get divorced but not remarried, your Will remain effective and un-revoked.
Q23. 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 another subsequent Will.
Q24. Can I write a Will by myself?
Yes, you can do so if you wish.
But if you make a mistake or omit something important, then this Will may become invalid. If there are many beneficiaries and multiple assets involved, the content of the Will document and its execution procedure will become very complex. The Will that is written by yourself in a DIY manner may not serve your wishes in a legitimate manner. Therefore, it is highly recommended to appoint a professional Will Writing company or engage a professional online Will writing platform such as SmartWills to help you in making a Will that is valid and legitimate.
Q25. Can someone challenge my will after I die?
Yes, it is possible. Hence, it is important to ensure that the Will you make is valid and legitimate in accordance with the Laws of Malaysia.
Q26. What are the risks inherent in writing a Will?
A Will does not supersede the earlier nominations in your insurance policies and/or 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 decease, his/her share will be held on trust by the appointed guardian for administration until he/she reaches age of 18 years.