A Will is one of the most important documents in estate planning. It allows a person to decide how their assets should be managed and distributed after their death, rather than leaving these decisions entirely to the law.
In Malaysia, a person who makes a Will is known as the testator, while the property, money and other assets left behind are collectively known as the estate.
What Is a Will?
A Will is a legal document containing a person’s instructions concerning matters to be carried out after their death. These instructions commonly include:
- who should receive the person’s assets;
- the share to be received by each beneficiary;
- who should act as the executor;
- who should care for minor children;
- whether assets should be held in trust;
- how debts, expenses and taxes should be paid; and
- what should happen if a beneficiary dies before the testator.
A Will only becomes effective upon the death of the testator. During the testator’s lifetime, the Will may generally be changed or replaced, provided the testator still has the necessary mental capacity.
For non-Muslims in Peninsular Malaysia, the principal legislation governing ordinary Wills is the Wills Act 1959. Different laws and requirements may apply in Sabah and Sarawak, while the estates of Muslims are principally governed by Islamic inheritance law and applicable state legislation.
What Can Be Included in a Will?
A properly drafted Will may cover many types of assets, including:
- houses, land and commercial properties;
- bank accounts and fixed deposits;
- shares and investment accounts;
- businesses and company shares;
- vehicles;
- jewellery and valuable personal belongings;
- intellectual property;
- money owed to the testator; and
- the residuary estate, meaning assets not otherwise specifically distributed.
However, not every asset necessarily passes through a Will. Jointly owned property, nominated benefits, trust assets and certain insurance or retirement benefits may be governed by their own legal arrangements. Each asset should therefore be reviewed carefully when preparing an estate plan.
Who Is an Executor?
An executor is the person or trust corporation appointed in the Will to administer the estate.
The executor’s responsibilities generally include:
- locating the original Will;
- identifying and securing the deceased’s assets;
- applying for a Grant of Probate;
- paying funeral expenses, debts, taxes and administration expenses;
- managing or selling assets where necessary; and
- distributing the remaining estate to the beneficiaries.
Under the Probate and Administration Act 1959, probate may be granted to an executor appointed under a valid Will. The Grant of Probate gives the executor the legal authority to deal with the deceased’s estate.
The choice of executor is therefore extremely important. The executor should be trustworthy, capable, impartial and likely to remain available throughout the administration period.
What Makes a Will Valid?
For a conventional non-Muslim Will governed by the Wills Act 1959, the basic requirements generally include the following:
- the testator must be of sound mind;
- the Will must be in writing;
- the testator must sign or acknowledge the signature;
- the signing must take place in the presence of at least two witnesses who are present at the same time; and
- the witnesses must sign the Will in the testator’s presence.
A beneficiary, or the spouse of a beneficiary, should not act as a witness because the gift to that beneficiary may become void, even though the Will itself may remain valid.
The signing process should be carried out carefully. A well-written document may still cause serious problems if it is not executed correctly.
What Happens When a Person Dies Without a Will?
A person who dies without leaving a valid Will is said to have died intestate.
For a non-Muslim estate falling within the scope of the Distribution Act 1958, the deceased’s net estate will be distributed according to fixed statutory proportions. The family cannot simply decide among themselves how the estate should be divided unless the necessary legal arrangements and consents are properly made.
The Distribution Act does not distribute the estate according to who needs the assets most, who cared for the deceased, or what the deceased may have verbally promised. It applies a predetermined legal formula.
Distribution Under the Distribution Act 1958
The following are common situations involving a surviving spouse, parents and issue. “Issue” generally includes children and the descendants of deceased children.
| Surviving family members | Statutory distribution |
| Spouse only | Spouse receives the whole estate |
| Parent or parents only | Parent or parents receive the whole estate |
| Issue only | Issue receives the whole estate |
| Spouse and parent or parents, but no issue | Spouse receives ½; parent or parents receive ½ |
| Spouse and issue, but no parents | Spouse receives ⅓; issue receives ⅔ |
| Parents and issue, but no spouse | Parents receive ⅓; issue receives ⅔ |
| Spouse, parents and issue | Spouse receives ¼; parents receive ¼; issue receives ½ |
These proportions are prescribed by section 6 of the Distribution Act 1958.
Where there is no surviving spouse, parent or issue, the law provides further categories of relatives who may inherit, including brothers, sisters, grandparents, uncles and aunts. In the absence of any qualifying relative, the estate may ultimately pass to the Government.
An Example of Intestate Distribution
Assume a non-Muslim man dies without a Will, leaving:
- a wife;
- both parents; and
- four children.
After paying his debts and estate expenses, his net estate is worth RM1,000,000.
Under the Distribution Act 1958:
- the wife receives ¼, or RM250,000;
- the parents collectively receive ¼, or RM250,000; and
- the children collectively receive ½, or RM500,000.
If the children share equally, each child receives RM125,000.
This may be very different from what the deceased intended. He may have wanted his wife to receive the family home, one child to inherit the business, or part of the estate to be held for a child with special needs. Without a valid Will, those personal intentions may not be carried out.
A Jointly Owned House Does Not Necessarily Solve the Problem
Some people believe that no Will is needed because their house is jointly owned with their spouse. This assumption can be risky.
The legal result depends on the form of ownership, the title documents and the applicable land law. Where the deceased’s undivided share forms part of the estate, that share may have to be distributed among several beneficiaries.
For example, the surviving spouse may retain their existing share of the property but inherit only part of the deceased’s share. The deceased’s parents or children may also become entitled to portions of that share. This can result in multiple family members becoming co-owners of the property.
A Will can provide clearer instructions concerning whether the deceased’s share should be:
- given to the spouse;
- given to the children;
- sold and the proceeds distributed;
- held in trust;
- subject to a right of occupation; or
- dealt with under another suitable arrangement.
Why Is a Will Important?
- You choose your beneficiaries
A Will allows you to decide who should inherit your estate and in what proportions. You may provide for your spouse, children, parents, relatives, friends, charities or other intended beneficiaries.
- You appoint your executor
Without a Will, an appropriate person must apply to become the administrator. This may lead to delay, disagreement or the need for additional security.
With a Will, you can nominate the person or trust corporation that you consider suitable to administer your estate.
- You can appoint a guardian
Parents with minor children may nominate a guardian to care for their children if both parents have died. Although the children’s welfare remains the court’s primary consideration, a clear appointment records the parents’ wishes.
- You can create a testamentary trust
An outright gift may not be suitable for a minor, a beneficiary with special needs, or a financially inexperienced beneficiary.
A Will may establish a testamentary trust under which the trustee holds and manages assets for purposes such as:
- education;
- medical care;
- monthly maintenance;
- housing;
- protection of inherited assets; and
- staged distribution at specified ages.
- You can provide substitute beneficiaries
A properly drafted Will should state what happens if a beneficiary dies before the testator. Without an appropriate substitution clause, the gift may fail and fall into the residuary estate or become subject to other legal rules.
- You can reduce uncertainty and disputes
Clear instructions can reduce arguments among family members concerning ownership, distribution, guardianship and administration.
A Will cannot guarantee that no dispute will arise, but careful drafting and proper execution can significantly reduce uncertainty.
Does a Will Avoid Probate?
No. Having a Will does not normally eliminate the need for estate administration.
Where there is a valid Will and an executor is appointed, the executor generally applies for a Grant of Probate. Where there is no valid Will, an eligible person generally applies for Letters of Administration.
The important difference is that a Will provides written instructions and appoints the person responsible for carrying them out. Without a Will, the administrator and beneficiaries are determined through the applicable legal process rather than by the deceased.
Is a Simple Will Enough for Everyone?
Not necessarily.
A straightforward Will may be sufficient for a person with a simple family structure and uncomplicated assets. More detailed planning may be needed where the testator has:
- minor children;
- a child with special needs;
- elderly dependants;
- children from different marriages;
- a business or partnership;
- properties under joint ownership;
- assets in different countries;
- substantial debts or guarantees;
- beneficiaries who are financially inexperienced;
- charitable intentions; or
- concerns about family disputes.
In such cases, a Will may need to be coordinated with trusts, nominations, insurance arrangements, shareholder agreements and business-succession planning.
Review Your Will Regularly
A Will should not be treated as a document that is written once and forgotten.
It should be reviewed after significant events such as:
- marriage or divorce;
- the birth or adoption of a child;
- the death of an executor or beneficiary;
- the purchase or sale of a major property;
- starting or selling a business;
- a significant change in wealth;
- a beneficiary developing special needs;
- relocation to another country; or
- changes in the law.
Marriage may revoke an existing Will except in certain circumstances, so a person who marries should obtain advice and review the Will promptly.
Conclusion
A Will is not merely a document for distributing money. It is a legal plan for protecting one’s family, appointing responsible persons and ensuring that assets are managed according to clear instructions.
Without a valid Will, a non-Muslim estate may be distributed according to the fixed proportions under the Distribution Act 1958 rather than according to the deceased’s personal wishes. Estate administration may also become more complicated, particularly where minor children, jointly owned property, businesses or vulnerable beneficiaries are involved.
Preparing a properly drafted and properly executed Will is therefore an important step towards orderly estate administration and responsible legacy planning.
This article provides general information and is not a substitute for legal advice. Malaysian succession law differs according to religion, domicile, location of property and the laws applicable in Peninsular Malaysia, Sabah and Sarawak