Last week, we had the opportunity to speak to Brenda Rangithan who is a Partner at Bodipalar Ponnudurai De Silva and specialises in probate matters, among others. Find out below if you really need to write a will before you go.
What is a will?
A will is, to put it simply, a document stating a person’s intentions as to the distribution of the said person’s assets/belongings upon death. All wills are governed by the Wills Act 1959. Every person of legal age ought to have a will and ensure that their will is regularly updated as the years go by as the cumulation of assets may change.
If a person dies without a will (intestate), things can become quite complicated as the said person’s assets will then have to be distributed according to the Distribution Act 1958. Section 6 of the Distribution Act 1958 lays out the entitlement based on the surviving relations of the deceased person. This may not necessarily be in line with the actual intentions of the deceased person.
Once a person dies, most of their assets will be frozen and can only be dealt with once the relevant papers are issued by the court:
- For a person dying with a will, it is known as a grant of probate.
- For a person dying intestate, it is known as a grant of letters of administration.
Note: It is also a lot longer and can be more complicated to obtain a grant of letters of administration as opposed to a grant of probate.
Is there a difference in the law for Muslims and Non-Muslims?
Yes, a Muslim person’s assets upon death are governed by the sharia law.
Can I amend my will after writing one?
Yes, you can amend/update your will at any time before you die. This can be done with a different lawyer/corporation. Just ensure that your new will is properly done in accordance with the laws and that it states that it supersedes all previous wills.
If I have two separate wills, which takes precedent?
The latter takes precedence (provided it has been done properly). However, do take note that there are ways to challenge a will.
Who can be my executor?
Any person above the age of 18 may be your executor including one of your beneficiaries. You may appoint between 1-4 executors. You may also specify an alternative executor in case the first one (or one of) the persons’ named predeceases (dies before) you. Alternatively, you may appoint a trust corporation instead of an individual to handle all the matters regarding the estate.
What happens if I die before writing my will?
You will then be considered to have died intestate. As mentioned, the Distribution Act 1958 will then apply. This may cause issues between potential beneficiaries and even who should be the right person to apply for the grant of letters of administration.
What if there’s a dispute on my will after my passing?
The beneficiaries of the deceased (both those named in the will or even those who claim entitlement but have been left out of the will) may attempt to challenge the will. This is a process that will be dealt with in the courts. Some grounds on which the will may be challenged are that it was not done in accordance with the requirements of the Wills Act ie. no proper witnesses or elements of fraud or forgery, or it may also be challenged on the basis that the deceased person was of unsound mind when making the will or that he was under undue influence. The latter can happen especially when a person suddenly changes their will on their death bed.
What are the steps to write a will?
- Ensure you have all your assets listed, with as much detail as possible to avoid ambiguity and gaps which may complicate matters.
- Ensure all your beneficiaries are set out clearly and your intentions for distribution to each beneficiary.
- It is also advisable to include a residual clause. This is a clause which basically governs all assets which may not be included in the will which belong to the deceased at the time of death.
For your will to be valid, you must be of legal age(18) and sound mind, it must be in writing, signed and it must be witnessed by 2 persons who are both present at the time of signing of the testator and both witnesses respectively. Note that your witnesses cannot be your beneficiaries. Also, note that these two witnesses are persons who will have to affirm affidavits in the application to the court for the grant of probate saying that they did witness your signature and that you were of sound mind. These witnesses may also come into play when there is a challenge to the will.
Is there a free service available to write my will?
There may be samples of wills available online but it is always best to consult a lawyer or professional will writers to ensure everything is in order and to avoid any complications that may arise later.
How much does it cost to write a will?
Depending on the corporation/firm, it can be anything between RM500-RM5,000 depending on the size of the estate and the complexity.
What do I do with my will after it’s been signed?
An original copy is needed to prove the will when you apply for a grant of probate. It is always best to keep at least two copies of the will sealed, one with the testator and one with an executor or depository or in a place you trust. Ensure that your executor knows where to find the original will after your death.
Can the will supersede my EPF or Insurance beneficiary nomination?
Despite having a will, if you allocate distribution of your Employees Provident Fund (EPF) or insurance policies, it will not stand against nominations made in your insurance policy and EPF. Therefore, do ensure that there are no clashes there.
If you need further information on probate matters, feel free to reach out to Brenda Rangithan, as below:
03-6205 5000
brenda@bpdlex.com or info@bpdlex.com