In recent years, Malaysia has become an increasingly attractive destination for foreigners to live, work, retire, or invest. With government programmes such as Malaysia My Second Home (MM2H), more and more expatriates are choosing to make Malaysia their long-term home.
As more foreigners settle down here, we’ve been getting a common estate planning question:
“Can my foreign friend or partner be a witness to my will?”
“Is it okay if my witness doesn’t live in Malaysia?”
While the law does allow it, there are some practical issues you should be aware of, especially when your loved ones apply for a Grant of Probate after your passing.
What does the law say?
Under the Wills Act 1959, a valid will in Malaysia must:
- Be signed by the testator (the person making the will).
- Be witnessed by two individuals, who also sign the will in the testator’s presence.
- The witnesses must not be beneficiaries of the will, or married to a beneficiary.
There is no legal requirement that witnesses must be Malaysians or residents of Malaysia.
But the real question is: Is it practical to appoint a foreign witness?
What happens if my witness is overseas?
Let’s say you wrote your will in Malaysia and your foreign friend signed it as a witness. Years later, you pass away, and your executor applies for a Grant of Probate.
That’s when a problem can arise: Your witnesses must confirm the will
During probate, your executor must file a document called the Affidavit of Attesting Witness. This affidavit confirms that the will was properly signed and witnessed according to the law.
Here’s where things can get complicated:
If your witness is in Malaysia, it’s easy. They can just go to the Commissioner for Oaths to sign the affidavit.
If the witness is overseas, things get trickier.
If your witness is in a Commonwealth country (like Australia, the UK, or Singapore), this is usually possible. They can sign the required document in front of a Notary Public, and Malaysian courts typically accept it.
However, this process may cost more, because they’ll need to pay for the notary’s services and may have to go through extra steps like couriering documents or getting embassy endorsements.
If the witness is in a non-Commonwealth country, it can be even more troublesome. The Malaysian courts might not accept the document unless it goes through more complex legal procedures. This may cause delays, higher costs, and more frustration for your family.
Practical solution:
While it may be legally acceptable to have foreign witnesses, it’s often not worth the trouble.
To make life easier for your family in the future, we always recommend choosing witnesses who:
- Live in Malaysia
- Are easily contactable
Even if you are a foreigner living in Malaysia, it’s still more practical to appoint local witnesses. This avoids unnecessary stress during an already difficult time for your loved ones.
Want to learn more about how foreigners are involved in Malaysian wills?
Can foreigners write a will in Malaysia?
Learn how non-Malaysians can legally write a will under Malaysian law.
Can I appoint a Foreigner as my Executor and include him as my Beneficiary?
Explore the legal and practical challenges of appointing foreigners as executors and beneficiaries.
A foreigner can be your witness, but choosing someone who is easily reachable will make the grant of probate process much simpler for your loved ones.
You may make an appointment with our legal advisor here: https://calendly.com/finex-and-co-legacy-advisory/tea-talk-with-legal-expert
