Divorce proceedings in Malaysia can be lengthy, often taking several months or even years to conclude. During this period, many individuals become concerned about the management and distribution of their assets should an unexpected event occur before the divorce is finalised.
A frequently asked question is: “Can I prepare a will while my divorce is still ongoing?”
The answer is yes. Not only is it legally permissible, but it is also a prudent step to protect your interests.
What are matrimonial assets?
In Malaysia, non-Muslim divorces are governed by the Law Reform (Marriage and Divorce) Act 1976. Matrimonial assets generally refer to:
- assets purchased jointly or individually during the marriage; and
- Assets that were significantly improved during the marriage through the contribution of the other spouse.
If the couple can agree on how to divide the matrimonial property and other matters, it is known as a joint divorce petition. This type of divorce usually does not take long.
However, if the couple does not agree to the divorce or to the terms, including how to divide the matrimonial assets, either spouse can initiate a single divorce petition, also known as “unilateral petition,” even without the other’s consent. Such proceedings usually take longer and may take years to settle.
Can you prepare a will during an ongoing divorce?
Yes. The law does not prevent you from writing a will while the divorce is still in progress.
Assets you can include in your will:
Assets that are solely in your name, such as personal bank accounts, insurance policies where you are the policyholder, or property acquired before the marriage, can generally be included in your will without issue. These assets are considered your personal property and are not usually classified as matrimonial assets, unless they were substantially improved during the marriage by the other spouse. Including them in your will allows you to clearly direct how they should be distributed.
How about jointly owned assets?
You may also include your share of jointly owned assets in your will. For example, for jointly owned real property, you may specify how your undivided share should be distributed. If the court later awards the property entirely to your spouse, any clause in your will relating to that asset will simply not take effect. This approach allows you to plan responsibly without prejudicing the outcome of the divorce settlement.
Joint bank accounts require similar caution. Even if there is a survivorship clause, it does not automatically mean that the other joint account holder can claim all the funds. For more details, you can refer to our previous article: “If the Other Joint Holder Passes Away, Is the Money Automatically Mine?”.
Any other assets that are not specifically mentioned in your will can fall under your residuary estate. This ensures that any new assets acquired in the future, or assets not explicitly distributed in the will, are automatically included and distributed according to your wishes.
Why writing a will during divorce is important?
Until a divorce is legally concluded, you remain married in the eyes of the law.
This means:
- If you pass away without a will, your estranged spouse may still be entitled to a substantial portion of your estate under the Distribution Act 1958.
- Your intended beneficiaries may face delays and disputes.
- Your estate could be distributed contrary to your wishes.
A will ensures clarity, safeguards your intentions, and provides certainty during a period of uncertainty.
A will alone may not provide adequate protection for minor children.
Under Malaysian law, before a child attains the age of 18, the executor is required to hold the assets on trust for the minor. Once the child reaches 18, the executor should release the inheritance in a single lump sum.
A testamentary trust offers a more robust solution. It enables you to:
- Appoint a trustee to manage the inheritance
- Set conditions on when and how funds may be used
- Provide long-term financial management for education, living expenses and etc
- Avoid sudden access to large sums by young beneficiaries
For a deeper explanation of how this works, you may refer to our article: “Why Every Parent Should Use a Testamentary Trust for Education Planning.”
Preparing a will during an ongoing divorce is both permissible and advisable. It ensures that your assets are distributed according to your intentions and protects your beneficiaries from unintended legal consequences.
You may make an appointment with our legal advisor here: https://calendly.com/finex-and-co-legacy-advisory/tea-talk-with-legal-expert
