Is It Important To Have A Will? 

A - Introduction

First off, what is a Will? A Will is defined as a declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death. In short, a Will is a legal document that states how and to whom a person wants his/her assets to be distributed when he/she have moved on from this world.

Before we move on, let’s go through some legal terms we will be using so that you won’t feel like you just stepped into a misty forest while going through this article:

1. Testator – the person making the Will

2. Beneficiary – the person who will benefit from the Will

3. Executor – the person appointed by the Testator to execute the Will

4. Administrator – the person appointed by the Court to handle the distribution of the deceased’s assets

5. Estate – the money and property owned by the deceased

6. Grant of Probate – a grant issued by the High Court to empower the executor to administrate the testator’s estate

7. Letter of Administration – a letter issued by the High Court to empower the administrator to administer the deceased’s estate

B - Conditions For A Will To Be Valid

Although a Will is generally not considered to be a complicated legal document, however there are several prerequisites which have to be fulfilled for a Will to be valid:

1. The Testator must be 18 years old or older;

2. The Will must be in writing and signed by the Testator;

3. The Testator must sign the Will in the presence of two witnesses; and

*Take note that a beneficiary / the spouse of a beneficiary may not be witness to the Will.

4. The Testator must be of sound mind when making the Will.

As the Testator will have appointed an Executor(s) in the Will, when it comes to executing the Will, the Executor(s) will have to apply for a Grant of Probate at the High Courts in Malaysia. This process takes about 3 – 6 months depending on various circumstances. After obtaining the Grant of Probate, the executors will then start paying off debts, sell or transfer properties and distribute the assets to the beneficiaries according to the wishes stated in the Will.

C - Benefits of Having A Will

1) The Testator can choose his/her executor(s)

The Testator can choose his/her own executor, usually someone who is trustworthy and whom the testator believes would be able to execute the Will. Up to 4 executors may be appointed.

2) The Testator can choose his/her beneficiaries and what assets they receive

The Testator gets to choose how he wants to distribute his assets and who will receive his assets. In this manner, the chances of family disputes arising becomes lower as the intentions of the Testator would be clearly stated. 

3) The Distribution of Assets will be Faster and Cheaper

Generally, the time to obtain a Grant of Probate for the deceased’s estate is usually shorter than the time to obtain a Letter of Administration, mainly due to the fact that there is the additional processes of choosing Administrators and identifying the deceased’s assets.

4) Will Writing is Flexible

The Testator can always amend the contents in his/her Will according to changes in circumstances to his/her life.  A Will is not fixed in stone and the Will with the latest date would be considered a Testator’s last Will and will prevail over all previous Wills.

D - What Happens if A Person Dies Without A Will? 

If a person dies without a Will, his assets will be distributed in the fixed manner stated in S.6 Distribution Act 1958, which may not be how he would have wanted his assets to be distributed.

E - Disadvantages of Not Having A Will

1) No Executor is Appointed

Without a Will, a person would not have stated in writing who he wants as executor for his estate. Hence this role would have to be filled by an Administrator, who is usually a family member or a person with an interest would apply. However, disputes may arise between family members and/or beneficiaries regarding who should fill this role.

2) Distribution of Assets will Take Longer

Generally, distribution of assets for estates without a Will takes longer, as firstly, there is the process of choosing who should be the Administrator(s) and secondly, the Administrator(s) will need more time to compile the list of assets owned by the deceased. Further court orders are also required to transfer immovable properties.

3) Sureties Needed

Two sureties with assets equal in value to the deceased’s estate need to be appointed to guarantee the proper administration of the deceased’s estate. However, this may pose as a difficulty as it is not easy to find suitable sureties especially if the value of the estate is large. 

4) Single Property Divided into Many Parts

Looking at it through a practical approach, if the deceased owns properties and he does not have a Will, every property will follow the distribution method as stated in S.6 Distribution Act 1958. 

For example, if a person has Property A, Property B and Property C and leaves behind a spouse and 5 children. 

Property A

• 1/3 share to spouse

• 2/3 share to be shared equally among the 5 children which means each child gets 2/15 share.

Property B

• 1/3 share to spouse

• 2/3 share to be shared equally among the 5 children which means each child gets 2/15 share.

Property C

• 1/3 share to spouse

• 2/3 share to be shared equally among the 5 children which means each child gets 2/15 share.

This method of distribution, especially for immovable properties may pose a difficulty for beneficiaries to handle, sell, utilize, or transfer the property as there are too many owners for one property. When you think about it, if the beneficiaries also do not have Wills and their share in the properties pass to their own beneficiaries through S.6 method, the property may end up being owned by tens if not hundreds of beneficiaries, effectively rendering it almost impossible to transfer or sell the land as it will be difficult to obtain signatures of all the owners.

Last but not least, we hope you find this article helpful! Please do not hesitate to contact us if there is anything that we can assist you with!