Wills are written by one leaving a legacy for their loved ones. That person is known as a “Testator”. Wills are also used to ensure that the Testator’s loved ones are well provided for when the Testator passes away.
To understand what wills are, we turn to the Wills Act 1959 which applies to West Malaysia and Sarawak. A will is a declaration made in a prescribed manner of the intention of the Testator with respect to their property or other matters which they desire to be carried into effect after their death. Besides disposing of property and possessions, a Testator may use their will to make a testament, a codicil, an appointment by will, as well as appoint the guardianship, custody, and tuition of any child.
Note that in Sabah, wills are governed by the Wills Ordinance (Sabah Cap 158). Wills by a native made in accordance with native law or custom are exempted from this Ordinance.
If you are a Muslim, your Will is known as a Wasiat; it is governed separately by Islamic law and the Enactments made by the respective States.
Who can be a Testator?
Not everyone can write a Will. They need to have “testamentary capacity”. Your testamentary capacity is determined by these factors:
- Age
- The soundness of mind, memory, and understanding
First, the person must have attained the age of majority. In West Malaysia and Sarawak, the person must be eighteen (18) years old. In Sabah, they need to be at least twenty-one (21) years old.
Second, the person must be of sound mind, memory, and understanding. They need to have the sufficient mental capacity to understand their actions. This poses a challenge when there is the onset of illnesses like dementia or undergoing heavy medication. Mere forgetfulness itself does not suggest “unsoundness of mind”.
Generally, the consideration for will writing starts when you turn 18 (21 in Sabah) or have gained either wealth or property of substantial worth, and stops at either death or the loss of mental soundness.
What Formal Requirements Must be Met?
The Wills Act of 1959 laid out the formalities for a valid will.
First, wills must be in written form. It can be handwritten, typewritten, or printed out. The good news is you don’t have to write it in legalese or formal language. It can be written in a language you’re familiar with. Unfortunately, we do not recognise video or audio recordings as Will.
Second, the Testator needs to sign at the foot or the end of the Will. If the Testator cannot physically sign, another can sign on their behalf. However, that other person signing must sign in the Testator’s presence and by their direction.
Third, at least two other witnesses must be present at the same time as the Testator or the person signing on the Testator’s behalf. The Testator and same witnesses must sign or initial against addition, alteration, or deletion to the same Will. Take note that anyone can be asked to be an attesting witness to a Will. However, the moment they become attesting witnesses, the law voids any gifts to them or their spouse. In simple words, make sure your Beneficiaries or their spouses are not your attesting witnesses – otherwise, they cannot inherit the gifts provided under your Will.
It is very important that these formalities are met. Failure to comply renders the Will invalid, and the Testator is said to have died ‘intestate’. In that instance, the estate will be distributed according to the Distribution Act 1958, and not following the Testator’s intentions and wishes.
What Should Be Included in a Will?
Besides the formal requirements, the law is silent on the content of a Will. However, you should include these items in your Will:
- Date: Chances are you will develop various wills throughout your lifetime. These often reflect key milestones such as marriage, the birth of a child, divorce, the death of a spouse or family member, or purchasing a new major asset. Having a date in your Will makes it easier to determine which one of these versions is your “last Will and Testament”. Otherwise, your Executors will need to adduce other evidence to determine which of these Will is the last Will and Testament.
- Identity of the Testator: Remove ambiguity as far as possible – even to the Testator. You can include your full name, address, the National Registration Identity Card (NIRC) number, or the Passport Number of the Testator. Ideally, you can include other names, aliases, or nicknames that you may have. This information will be recited later in the Grant of Probate issued by the High Court.
- Last Will clause. This is a phrase that declares the current Will that is being signed is your last Will and testament. In addition to that, you may want to include a clause that revokes any and every previous Will(s). Without this clause, more than one Will be admitted into Probate.
- Executor(s) appointment clause. It is best to appoint at least two Executors. In the event one dies, the other has the authority to continue the work. If there is a minor involved, it is good to appoint Trustee(s). Wills without an Executor does not invalidate the Will. Instead, there will be a period after your death when no one is in control of your Estate and affairs. Then, someone needs to step up as an Executor by filing the application for Letters of Administration with a Will Annexed.
- Debt settlement, funeral expenses, and testamentary expenses direction. Over your lifetime, you may accumulate debts. These days most credit facilities and loans have insurance when you apply for them. In the event of your death, the insurance will settle whatever amount is owed to the financier. However, you may have applied for facilities before this insurance was common. Or perhaps the facility you received does not come with such protection. Besides that, you may have outstanding consumer debt with retailers or service providers. If you are a sole proprietor, you may be responsible for debts owed from your business. Funerals, too, can be costly. When you engage a professional executor, you may need to set aside some money as their fee. With all this in mind, it is good practice to include a direction on how these debts and expenses should be paid before your assets are distributed to your beneficiaries.
- Distribution clause(s). When people think of a Will, the distribution of asset comes to mind. This is the section where you state your beneficiaries and how your assets will be distributed. When describing your assets, you can be specific (e.g., my pink diamond with 24k gold ring from Poh Kong) or general (e.g., all my rings). Some Testators may be definitive with their gifts. They would create a visual inventory of their possessions and ascribe a serial number to them. This may be tedious, but it helps if your beneficiaries do not know which item is which. Artworks and cultural heirlooms, for instance, may not easily be identified without a designated serial number.
- Residuary clause. Just because you have a Will does not mean you stop accruing assets. Likewise, you may have intended certain assets for a specific beneficiary, but they died. And before you could come around to make a new Last Will and Testament, you find yourself incapacitated. Another scenario is where you accidentally omit certain assets that were meant to be dealt with in the will. This is where a residuary clause comes in. A residuary clause serves as a precautionary clause on how to deal with these estates. Without a residuary clause, the residuary estate goes into intestacy. This means that those assets will be distributed following the Distribution Act of 1958.
- Testator’s signature at the foot of the Will. This is also accompanied by an attestation clause where two or more witnesses signed at the end of the Will with their particulars stated clearly.
A Will helps ease the transition of your worldly possessions. It also allows you to give your final instructions on your affairs. Practically, it helps your heirs and beneficiaries by expediting the administration of your estate.