Wills & Succession
No one wants to think of the possibility of death. However, it is important to ensure your family is protected if anything happens to you. Preparing a will is one of the necessities nowadays. Always ensure that your wishes are properly documented to ensure that the disposal of your assets will be according to your will.
In Malaysia, there are two systems of law governing the matter of inheritance. The non-Muslims are governed by civil law while the Muslims are regulated by Islamic Law.
Under Islamic Law, the Islamic term for a will is called Wasiat. Wasiat is a gift of property by its owner to another contingent upon the giver’s death. However, as a Muslim, there are two restrictions that he/she has to follow. One is that the testamentary disposition may not exceed one-third (1/3) of the deceased’s entire net assets. Another restriction is with regard to the beneficiary of the bequests. A testator or testatrix may not make a bequest in favour of any of his/her legal or Quranic heir. The rationale behind this rule is that the legal heirs’ portions are fixed in the al-Quran and no one can increase or decrease them through bequest, neither can a legal heir be deprived due to any bequest.
A will is a document which contains a person’s intentions on the distribution of his or her assets at death.
The advantages to having a will are as follows:
- Choose your beneficiaries and how your assets are to be distributed
- Choose your trustee and executor to administer your estate
- Set up a testamentary trust for your minor children, heirs with special needs or charities
- Choose the guardian of your minor children
- Minimise the chances of family disputes over property
- Speed up the distribution process considerably
- Reduce the costs of administering your estate
- Express your wishes for your funeral arrangements
The Wills Act 1959 does not lay down any rules as to who is qualified to be a beneficiary under the will of a testator. Thus, a beneficiary may be either a minor or an adult.
If you die without leaving a will (i.e. intestate):
- Your assets will be distributed according to the Distribution Act 1958
- The Court will appoint a trustee and executor to administer your estate, and this may give rise to disputes between family members or beneficiaries as to who should be appointed
- The Court will appoint a guardian for your minor children, and the person appointed may not be the one you would have preferred
- The distribution process will take longer and cost more, ordinarily requiring a bond and the appointment of 2 sureties to guarantee the proper administration of the estate, as well as further court orders to effect the transfer of real property
To make a valid will, you must:
- Be at least 18 years old
- Be of sound mind
- Have your will in writing
- Have signed your will
- Have your signing witnessed by at least 2 witnesses who will then sign in your presence and in the presence of each other
Can a wife or husband be one attesting witness of her husband’s or his wife’s will and what is the effect if she or he did attest the will?
No, a wife or husband cannot be one of the attesting witnesses of her husband’s or his wife’s will and the will will become invalid.
Once executed, your will is valid until it is replaced by a new will, revoked in writing or destroyed intentionally. Your will will be automatically revoked if you marry or remarry, or convert to Islam.