1. What is a will ?
2. Do you need a lawyer to make a will ?
3. What you can include in a will
4. Witnessing your will
5. Privileged wills of soldiers airmen and sailors
6. EPF monies
7. Changing your will
8. Reviewing your will
9. Making known your will
10. Administering your estate
11. If you do not make a will
12. Syariah court |
This pamphlet explains what a will is under the Will Act 1959 (the Act) and what happens to your assets and liabilities (Estate) after your death.
1. WHAT IS A WILL?
1.1 A WILL is a document where a person states his intentions as to how his Estate is to be administered and distributed after his death and who is to administer the Estate for the deceased. It may include provisions for guardianship, custody and tuition of a child.
1.2 A Will must be in writing unless it is a privileged Will as stated in paragraph 5 below.
1.3 The person making the Will is called the Testator and he must be at least eighteen (18) years of age and of sound mind unless he is a soldier in actual military service or a mariner or seaman at sea.
1.4 The person named by the Testator to administer and distribute the Estate is called Executor if a male and Executrix if a female. The Executor need not be a beneficiary.
1.5 Those persons who inherit or benefit under the Will are called Beneficiaries.
1.6 If there are minor Beneficiaries, i.e. persons below the age of eighteen (18) years named in your Will, you must name at least two (2) Executors.
1.7 You may also state in your Will that the Executors are also to act as trustees to hold any assets or invest or use any money for the benefit of the minor Beneficiaries named in your Will.
1.8 A Will need not be stamped.
DO YOU NEED A LAWYER TO MAKE A WILL ?
2.1 You do not need a lawyer to make a Will.
2.2 However, your home-made Will may be ineffective and invalid and this may cause your Executors/ Beneficiaries unnecessary expense and distress.
2.3 It is therefore in your interest to consult a lawyer who would be in a better position to advise you and draft your Will for you.
WHAT YOU CAN INCLUDE IN A WILL
In your Will, you should:
3.1 Name the person (s) you wish to nominate as Executor (s);
3.2 Name the Beneficiaries to whom you wish to give your assets and property to and the proportion the Beneficiaries are to inherit.
3.3 You may, if you so wish, specify which Beneficiary is to inherit which asset/property.
WITNESSING YOUR WILL
4.1 The Testator must sign at the foot or end of the Will.
4.2 The Testator's signature must be witnessed by at least two (2) persons who are NOT Beneficiaries under the Will and who are NOT the husband/wives of the Beneficiaries.
4.3 An Executor who is NOT a Beneficiary or a husband/wife of any Beneficiary under the Will may witness the Will.
PRIVILEGED WILLS OF SOLDIERS, AIRMEN AND SAILORS
5.1 A soldier in actual military service, or a mariner or a seaman (naval forces) at sea, is entitled to make what is called a "PRIVILEGED WILL".
5.2 A Privileged Will may be oral or in writing and need not be signed by the Testator.
5.3 A Privileged Will becomes null upon expiry of one (1) month after the Testator being still alive, ceases to be a soldier in actual military service or a mariner or seaman at sea.
EPF MONIES
6.1 If you have made a nomination under the Employees Provident Fund (EPF) Act for your EPF monies, your nominees shall be entitled to your EPF monies regardless of what you state in your Will.
6.2 Please note that your EPF Nomination is revoked as follows:
1) upon death of the nominee during your lifetime; as member; or
2) by notice of revocation made by you as member; or
3) by subsequent nomination made by you as member of the Fund. The later nomination will supercede the earlier.
CHANGING YOUR WILL
7.1 You may change your will at any time and from time to time during your lifetime.
7.2 However, never attempt to change your Will by deleting words or adding words in or by attaching anything to it. If you do, your Will becomes ineffective or invalid unless the changes are properly made.
7.3 You should rewrite your Will if you wish to change it. The new Will will automatically supercede the previous Will.
REVIEWING YOUR WILL
8.1 Generally, if you marry or re-marry, your Will will be revoked by the marriage and becomes null or cancelled.
8.2 You should also review your Will:
(a) If you change your name or anyone mentioned in the Will changes his;
(b) If your Executor dies or becomes unfit/unsuitable to act;
(c) If there are any other changes which you consider will affect the Will.
8.3 It is advisable to review your Will regularly.
MAKING KNOWN YOUR WILL
9.1 Although a Will is a private document, it is important that your family and especially your Executor(s) know that you have a Will and where it is kept.
9.2 If you wish your lawyer to look after your Will for you, you should at least give your Executor (s) your lawyer's name and address.
ADMINISTERING YOUR ESTATE
10.1 Your Will takes effect only upon your death.
10.2 Your Executor would have to apply to Court for a Grant of Probate.
10.3 However, your Executor has the power by virtue of your Will to act even before the Grant of Probate is issued. For example, your Executor may pay or release debts and transfer property or assets according to the Will.
10.4 Once the Grant of Probate is issued, the Will becomes a public document. The Original Will is retained by the Court.
10.5 Your Executor will be given a copy of the Will together with the Grant of Probate.
10.6 All your property and assets will pass to your Executor, who will have the responsibility of administering and distributing the Estate according to your Will.
IF YOU DO NOT MAKE A WILL
11.1 If you pass away without making a Will, your assets will be distributed according to the rules of intestacy as laid down in the Distribution Act, 1958.
11.2 Your lawyer can advise you about these rules and how they apply to you.
11.3 If you die without making a Will, your Estate may be distributed to persons to whom you do not intend to give anything.
11.4 Furthermore, the people who will look after your Will are not of your choice. They are called "Administrators" if males and "Administratrixs" if females instead of Executors although they perform a similar task.
11.5 They have to apply to Court for "Letters of Administration" and the procedure is generally more complicated than in the case when you have a Will. For example, the administrators will have to provide two sureties (or guarantors) with unencumbered assets equivalent to the value of your Estate unless they obtain a Court Order dispensing with this.
11.6 If you have specific intentions about providing for your family members, friends or a charity after your death, you should consider making a Will.
SYARIAH COURT
12.1 Some of the provisions mentioned above do not apply to Muslims.
12.2 Generally, Muslims can only dispose off or give away one-third (1/3) of his Estate under a Will.
(Reproduced with the courtesy of the Bar Council.) |