This article first appeared in City & Country, The Edge Malaysia Weekly on May 23, 2022 - May 29, 2022

It is important to have a will if you want to ensure that your properties are properly distributed to your intended beneficiaries. For non-Muslims, asset distribution is a civil matter.

“If you die without a will, then the Distribution Act will prescribe where your assets go according to a formula that doesn’t take into account your wishes since you did not state them in a will,” says Chur Associates founder and managing partner Chris Tan.

Moreover, the ownership of property needs to be verified before it can be passed on. Property is one asset where ownership can be shared, whereas others such as cars cannot be, says Tan.

Also, not everything written in a will can be carried out. For instance, if one has nominated beneficiaries for one’s EPF funds, insurance and unit trusts, the will does not override such nominations, he adds.

“There are a few ways to draft a will. Number one, you can draft your own. Another way is to engage a lawyer or a professional will writer. The professional will writer would have other services, for example, a place to keep your will, track your assets, or even estate planning as well as wealth-preservation matters,” he says.

Will drafting fees can be three to four figures, depending on how complex the will is, says Tan. To ensure that the will is not challenged, for instance, it must adhere to several elements.

“The person who makes the will must have attained the age of majority, which is 18 years old in Peninsular Malaysia. A person below 18 simply cannot own assets,” he says.

The testator must have legal capacity, is of sound mind and is making the will voluntarily. “This is important, especially when the validity of the will is challenged. If the will is successfully challenged, then the Distribution Act’s formula will be applied in place of the will,” says Tan.

Next, for the will to be valid, an executor must be appointed. “The executor is responsible for the management and distribution of assets to the beneficiaries, that is, executing the estate in accordance with the will.”

“Make sure that you nominate someone who is expected to live longer than you. You can have several choices of executors like first choice, second choice and third choice. If the first passes away or refuses or is unable to execute the will, then there is the second choice and so on,” he says, adding that details such as identification card number, home address and other relevant details need to be clearly stated in the will.

“You can appoint a lawyer to be the executor. You can also have joint executors, although this is not encouraged unless one executor cannot complete all the tasks properly. Conflicts may arise between joint executors, for example, they may have different interpretations of the will and different views on when to execute the will, which may lead to a delay in the probate process,” says Tan.

“Interestingly, it is not a legal requirement to inform the person that he is an executor of a will. However, it is advisable to do so for practical purposes. And to let this person know where the will is,” he adds.

“Usually, there are two copies of the will, the original is kept by the testator and the other is with the lawyer or the will drafter. However, in the process of obtaining the grant of probate, the witness to the will needs to support the authenticity of the will in court.”

You must have two witnesses to verify your signing of the will and they should be traceable. “The witnesses can be lawyers because they have records with the Bar Council and can be traced relatively easily. Estate planners too are okay, since they have records as well,” says Tan. He adds that the witness cannot be a beneficiary of the will as this can be subject to a legal challenge.

Ensure that the assets are clearly described. So in the case of a property, this goes beyond just giving the home address. Further information can be included, such as details of the land title.

Also, you need to describe your beneficiaries properly. “If the asset is to be split among several beneficiaries, then the will has to stipulate the portion for each beneficiary,” says Tan.

One can make several wills over one’s lifetime, but the court will only look at the latest one, he adds.

Moreover, a will does not have to be in English. If the will is in another language, the testator must understand what he is signing. An interpreter can be used and it can be indicated in the will as having done so, says Tan.

What happens if the will is challenged because it isn’t “fair”? He says, “You cannot challenge ‘fairness’. If it can be proved that the will was written by the deceased, that it was without any influence and the deceased was of sound mind and knew exactly what he or she was doing, and the witness is ready to support that, then the will cannot be challenged.”

Tan explains that even with a will, there will be a period of time before the assets can be handed over to the beneficiaries.

“If a person passes away leaving behind a will, the executor needs to go to court and get a grant of probate. The list of assets and liabilities and the list of beneficiaries need to be filed with the court, and the executor will then distribute the assets according to the will of the deceased. The process of getting the grant of probate can take one to three months, depending on the court’s schedule and whether it is a non-contentious probate,” he says.

“If a person passes away without a will, the family members or any interested person in the estate can apply for the grant of letter of administration in court.”

Tan highlights that for a small estate, it has to be under RM2 million in total value and the estate must consist of at least one immovable property. Application for the letter of administration can go through the applicable land office instead of the court.

“The list of assets and liabilities and list of beneficiaries are to be filed with the court. The administrator shall then obtain the distribution order from the court and thereafter distribute the assets accordingly,” says Tan, adding that it may take four to six months for a two-step process, depending on the court’s schedule and the complexity of the case.

When there is a will, the court needs to confirm the executor appointed for his or her protection, says Tan. “You don’t want a situation where there is another will and it is not exactly how the deceased wanted to distribute his or her assets, but you have gone and done it already. Because you can get sued if a subsequent and later-dated will is found. You are protected when there is a court probate [appointment].”

If the property is abroad, the executor has to obtain the grant of probate in Malaysia first, then go to the country where the asset is located and apply to reseal probate [so that your will can be recognised there],” says Tan, adding that this can only be done generally in Commonwealth countries.

Malaysia has not imposed an inheritance tax since 1992 but beneficiaries may need to pay such a tax if the asset is in a country that has such a policy.

The Distribution Act, which comes into effect when there is no will, names the spouse, parents and biological children (issue), as the main beneficiaries of the deceased’s estate. So, adopted children are excluded unless they were adopted under the provisions of the Adoption Act 1952.

If there are no such persons, then the estate will be distributed to the deceased’s siblings, grandparents, aunts and uncles, great-grandparents and great-granduncles and aunts. If no such people exist, the government will be entitled to the whole estate.

In leaving behind a will that provides clear instructions on the distribution of your assets, particularly property, you will provide your beneficiaries with peace of mind.

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