Creating a Will stands as one of the most crucial actions you can take to ensure that your estate provides for your loved ones after your passing. In principle, you have the option to jot down your Will on a scrap piece of paper, as long as it is properly signed and witnessed by two adult individuals who are not connected to your estate, present at the time of signing. This should make it legally valid. However, this doesn’t necessarily mean it’s a wise choice.
One approach to crafting a Will is through the DIY (Do It Yourself) method, which is permitted under the Malaysian Wills Act of 1959. Drafting your own Will requires minimal initial financial investment (it’s cost-free!), but it does come with its disadvantages. This article will discuss the suitability of composing your own Will.
What Is a Will?
A Will is a legally binding written document that you (the testator) and witnesses sign, outlining your desires regarding the distribution of your assets and the care of any minor children, if applicable. It’s important to note that a DIY Will might not be able to encompass all of your assets.
This Applies Only to Non-Muslims
For individuals of the Muslim faith, inheritance matters are governed by Syariah law. In this context, one must prepare a “Wasiat” (equivalent to a Will) and designate a “Wasi” (akin to an executor).
Contrary to common belief, a Will and a “Wasiat” are two distinct entities subject to entirely separate legal frameworks, even though they both serve a similar purpose.
Would it be easier to have a Will or without?
If you believe that you can easily claim your inheritance at a bank or the land office by presenting your identification and your relationship to the deceased at any time, you’re mistaken.
When a non-Muslim individual passes away without a Will (intestate), their closest family members must seek a Letter of Administration, designate an administrator (with agreement from all legal beneficiaries), and undergo a protracted estate administration process that can stretch from 2 to 5 years.
With a Will, the procedure becomes considerably quicker, although it still requires at least 3 months for the executor to secure a Grant of Probate (court authorization for executing the Will) and carry out its instructions.
Failing to create a Will means you won’t have any control over how your assets are distributed after your demise. For non-Muslims, the distribution of assets will be entirely governed by Section 6 of the Distribution Act 1958 (Amended 1997).
Therefore, unless you are entirely satisfied with how this act dictates the distribution of your assets, it is advisable to have a Will drafted.
What Is The Requirement To Write A Valid Will In Malaysia?
In Malaysia, a person writing a Will must comply with the formalities stated in Section 5 of the Wills Act 1959, summarized as follows, in order for the Will to be valid and effective:
- the Will maker must be at least 18 years old;
- he/she must be of sound mind;
- the Will must be in writing;
- signed by the Will maker in the presence of at least 2 witnesses; and
- the 2 witnesses must then sign in the presence of each other and the Will maker.
Who Is Eligible to Serve as Witnesses for Your Will?
For your Will to be legally recognized in Malaysia, it is imperative to have a minimum of two witnesses. One of the primary roles of these witnesses is to verify that the individual creating the Will is mentally sound when the document is drafted. Ideally, your chosen witnesses should be at least 21 years old.
A Beneficiary Is Ineligible to Act as a Will Witness
An Executor, the individual responsible for executing or administering your Will and estate, can serve as a witness as long as they do not have a personal interest as a beneficiary in your Will. It’s important to note that in Malaysia, a beneficiary is prohibited from acting as a witness to your Will.
Is it Permissible for the Executor of Your Will to Also Be a Beneficiary?
Indeed, it is permissible for the designated executor to also be a beneficiary under your Will. For example, you have the option to appoint your son as both the executor and beneficiary in your Will.
Is it Necessary to Stamp or Seal Your Will?
There is no requirement for a Will to be stamped or sealed in order for it to hold validity in Malaysia.
Under What Circumstances Can Your Will Be Contested?
Your Will must be crystal clear and explicitly state your intentions, leaving no room for ambiguity or omissions that might provoke disputes.
However, whether your Will is drafted through DIY methods or by a professional, it can be contested by any “interested individuals” who have a legitimate stake and legal standing to benefit from the Will.
Common reasons for challenging a Will include:
- Allegations of a fake or forged signature of the testator.
- Claims that the testator was not of sound mind or was unduly influenced when creating the Will.
- Suspicions of unauthorized alterations to the contents of the Will.
- Improper witnessing during the execution of the Will, not done in the presence of the testator.
- The existence of a more recent Will that supersedes the older one.
If an interested party successfully challenges a Will, the court may declare it invalid. In such a scenario, the estate’s distribution will be conducted in accordance with the provisions of the Distribution Act of 1958.
Conclusion
In conclusion, the key takeaway is to resort to a DIY Will only when your wishes are straightforward, and your financial matters are uncomplicated. However, for maximum safety and assurance, it is advisable to seek the guidance of a lawyer. A legal professional can verify that your Will aligns with all statutory requirements, safeguarding both your interests and those of your loved ones, ensuring alignment with your specific wishes.
