WRITING A WILL

N. Subramaniyan

INTRODUCTION

In Malaysia the following Acts of Parliament deal with the manner and distribution of the estate of the deceased:

- Wills Act, 1959

- Distribution Act, 1958; (Distribution [Amendment] Act, 1997, which amended s. 6 of the DA,)

- Probate and Administration Act, 1959

- Small Estates (Distribution) Act, 1955

- Inheritance (Family Provisions) Act, 1971

WHY SHOULD A PERSON MAKE A WILL

Malaysians tend to get very irritated, upset and distressed and at times even offended whenever they are asked, “Have you written your will?” Their common responses are identical. The normal reply is,” Are you thinking that I am going to die soon?” One may or may not die soon, but the reality is that death is certain. When it visits us is uncertain. It may visit us at any time of the day or night, or at any place. Remember what happened on September 11, 2001. The 3,000 over people who perished on that day, did not expect death that morning. They expected to go to work, finish their work, have some meetings with their friends and then return to the comfort of their homes. But to these 3000 over people DEATH came. It was unexpected, uninvited and unwarranted. None of them expected death that day. None of them anticipated death that day. None of them thought about death that day. Yet they died. Now imagine if they had not written their wills, how will their properties be distributed. Life goes on even after death. Life goes on for those who are still living.

ADVANTAGES OF A WILL

1. The Testator (i.e. the person who makes the will; the female version is “Testatrix”) can choose a reliable person or persons (preferably 2) to be the executor(s) and trustee(s) of his will. If there is no will then some adult members will have to choose to be the administrator. Malaysians are unique people. They do not like to go to courts and be subjected to inconveniences, but they want benefits! Sometimes the estate of the deceased does not get distributed because the members of the deceased’s family want the properties but nobody wants to take on the added responsibility of becoming an administrator.

2. The Testator has control over the manner in which his property will be distributed. The Testator can give specific directions as to who should get which of his properties. Such freedom is not available under s.6 DA.

3. The Testator has control over who will be the recipients of his generosity. He can choose not to give anything to a particular daughter or son. Therefore if a particular daughter or son has insulted a father, the father can choose to write her/him out of his will!

4. The Testator can choose how much of his assets he wants to give to his family members, relatives, friends etc. Under the DA, it is not possible to provide for friends or charities or other organizations.

5. The provisions of the DA are strict, especially in the case of family members. For example the word “child” is defined in the DA as the legitimate child or an adopted child who has been adopted under the provisions of the Adoption Act,1952. Any other child will be excluded by the DA, but not so under a will.

6. The will makes distribution of landed property easy. Otherwise there will be disputes over the landed properties among the children and between the children and the surviving spouse.

WHAT IS A WILL?

A will is a written declaration of a person’s intentions or wishes, concerning the

distribution , disposition and devolution of his property after his death. A will is a unique document because it only becomes effective after the Testator (Testatrix) has died. Therefore it is often said that a will speaks from death. Until death occurs the will has no legal effect. The will is unenforceable until death. The will can be varied to meet changes in the testator’s circumstances and needs. Therefore the will is said to be ambulatory i.e. not permanent and its provisions are not final until death. Until the Testator’s death, he can vary the terms of his will; he can revoke the will; he can deal with the property as he thinks fit until his death.

WHAT KINDS OF PROPERTIES CAN BE DISPOSED OF BY A WILL?

All kinds of properties can be disposed off by a will. Properties can be categorized under the following categories:

- movable/personal (such as money, jewellery, cars, shares, furniture, paintings, sculptures, stamp collection, books, clothes, pens, pots and pans and all other household items and other chattels );

- immovable/real (such as houses and land); and

- intellectual property (copyright, patents, etc)

- money kept in the EPF account will not be governed by the provisions of the will. The money will be distributed to the persons nominated as beneficiaries in the EPF nomination form. Therefore ensure that you have changed the beneficiaries to your EPF money NOW!!!

FORMALITIES FOR MAKING A VALID WILL

The formal requirements for making a valid will are found in the Wills Act, 1959 and the formalities must be strictly observed.

- The will must be in writing.

- The Testator must be of the age of majority .This means that the Testator must be 18 years and above.

- The Testator must be of sound mind when he makes the will.

- The Testator must have property to dispose off either at the time of making the will or which property the Testator may become entitled to subsequent to the execution of the will.

- The will must be signed at the foot or end of the will by the Testator or by some other person in his presence and by his direction.Therefore any provision stated below the signature is invalid.

- The Testator’s signature must be made or acknowledged by the Testator in the presence of 2 or more witnesses present at the same time.

- The witnesses shall subscribe the will in the presence of the Testator.

- Publication of the Will is not necessary.

- Beneficiaries and their spouses cannot be witnesses to the will. In such an event, the benefits due to the beneficiary or his/her spouse will become utterly null and void. But an Executor can be a witness.

- Any alterations, defacement, cancellation or scratches shall not be valid unless initialed by the Testator and attested by the witnesses. Therefore do not make any alterations, cancellations or scratches. Make as many drafts as needed until you are satisfied. Then destroy the drafts.

PRIVILEGED WILLS

The law has also made provisions for certain groups of people to make “privileged wills.” The provisions of sections 4, 5 and 6 do not apply to members of armed forces in actual military service, a mariner or seaman being at sea. Therefore these people can make valid wills even though they may below 18 years old; the will can be oral (i.e. told to another member of the armed forces or navy or another seaman) and if written, need not be attested .

REVOCATION OF WILLS

A testator can revoke his will any number of times. It is the last will that will be considered as the valid will provided the formalities required for the making of a valid will can be found.

Revocation of a will occurs in the following manner:

Revocation by a subsequent will

It is always prudent and wise in preparing a new will ( even if it is the first will) to insert a clause revoking all former wills. This will avoid a problem if there are 2 wills and the court will have to decide which of the clauses in the earlier will have been revoked by the later will.

Revocation by destruction

There must be an intentional destruction of the will by the Testator or by some other person in his presence or under his direction. Accidental destruction does not revoke a will. In Cheese v. Lovejoy[14] the Testator after writing upon a part “This is revoked” threw the will in a corner of his study. The housemaid preserved it until the Testator’s death. The Court held that the will had not been destroyed and so could be admitted to probate.

Revocation by subsequent marriage

Where a person makes a will and then marries, his /her will is revoked by the marriage and becomes invalid. But a will made in contemplation of a marriage shall not be revoked by the solemnization of the marriage contemplated. Let me give you 2 scenarios to illustrate this legal principle:

a) Mr. X/Miss X, while being single make a will. A few years later Mr.X /Miss x marries. He forgets about the will he has made earlier. He then dies. The will that he made is invalid and is deemed to have been revoked upon his marriage. Therefore he dies intestate and the provisions of the Distribution Act will now apply.

b) Mr X / Miss X knows he/she is getting married to Miss Y/ Mr. Y in July. In contemplation of that marriage Mr. X / Miss X makes a will. That will is a valid will.

Doctrine of Dependant Relative Revocation

If a revocation of a will is conditional, it will only be effective when the revocation is fulfilled. E.g. when a testator revokes his will with the intention of making a new one, but forgets to do so, then the revoked will remains valid and will be regarded as the will of the Testator. The court will make a ruling declaring the original will (though revoked) as a valid will if the Court is satisfied that the Testator did not intend to revoke his will absolutely but merely revoked it as a step towards making a new will.

VALIDITY OF WILLS

What makes a valid will? This issue of validity is closely tied to the items discussed under the heading FORMALITIES FOR MAKING A VALID WILL.

Testamentary capacity

The Testator must be of the age of majority except for persons who are entitled to make privileged wills.

Of sound mind

The testator must understand the nature and extent of his property, the beneficiaries who are to be the recipients of his generosity and the disposition that he is making.

Not of unsound mind

Persons of unsound mind include defective persons as defined under the Mental Disorders Act, 1952 as well as persons who have been certified and detained in a mental hospital or a person of sub normal mind.

If at the time of making a will, a testator was through disease so deficient in memory that he was oblivious to the claim of his relatives, then the will is invalid. In Re Ng Toh Piew (deceased) the testator made the first will in 1947 and he was found to be of sound mind. In 1949 when he made his second will he was extremely ill and failed to provide for his son as he had done in the earlier will. He also told one of the witnesses that he had no son. The court declared the second will as invalid.

A testator though frequently of unsound mind can nevertheless make a valid will during a lucid spell. In Angullia v. Rahimaboo the Testator had been pronounced insane in 1910, 1918, 1924 and 1934. During a lucid period in 1938, the Testator made a will giving most of his estate to charity and died 3 years later. The doctor and lawyer who attested the last will deposed to the fact that the testator was physically weak and mentally dull, yet was of sound mind, memory and understanding. The testator died of a diabetic attack. The court held that on the evidence as a whole the will had been made during a lucid interval.

Fraud, Fear, Coercion and Undue Influence

Fraud: A will that is obtained by fraudulent means in order to benefit certain beneficiaries will be invalid. E.g. By lying to a person to attest a will by claiming that it is a receipt, etc.

Fear: Where a person is induced by threatening behaviour on the part of another to write a will, then such a will is invalid. Fear also covers situations where there is duress, e.g. A wife constantly nagging her husband to write a will in her favour or vice versa!

Coercion and Undue Influence: These occur where the testator happens to be rich, old and infirm and is linked to a young lady or vice versa.

VARIATIONS TO THE PROVISIONS OF A WILL

S.3. Inheritance (Family Provision) Act, 1971

Where a person dies domiciled in Malaysia leaving behind a wife/husband/ an unmarried daughter or infant son, who suffers from some mental or physical inability and is incapable of maintaining her/himself, then if the court on an application by or on behalf of the wife/husband/ daughter/son, is of the opinion that the disposition of the deceased’s estate effected by his will is not such as to make reasonable provision for the maintenance of that dependant, the Court may order that such reasonable provision as the Court thinks fit shall be made out of the deceased’s net estate for the maintenance of that dependant.

Deed of Family Arrangement

Where all the beneficiaries are in agreement then a Deed of Family Arrangement can be made to circumvent the provisions of the will. In a case that I handled, the person had a number of properties and he prepared a will bequeathing the properties to all his children. But the children wanted a variation to be made and to sell off one of the properties and to settle the outstanding loan on other properties. A deed of arrangement was drafted and signed by all the beneficiaries and an application was made to the High Court for the properties to be distributed pursuant to the Deed of Arrangement.

PRACTICAL GUIDELINES WHEN MAKING A WILL

Let us consider some of the practical guidelines for making a will;

1. Contact a lawyer whom you know or who is reliable.

2. Bring along your identity card.

3. List all the assets that you have: land, houses(it is advisable to bring copies of the title to these properties), car(s) (registration card), shares, jewellery, tv, radio, hi-fi, silverware, brassware, heirlooms, books, stamp / first day cover collection, badge collection , watches, pens and other collectibles such as toy dogs, bells, etc, bank accounts and other sundry items in the house can be described as chattels.

4. Identify the members of your family, especially your spouse (bring along his/her identity card ) and the children to whom you want to provide for in your will. Make sure their names are correctly spelt. It would be prudent if you can produce photocopies of their identity cards or birth certificates.

5. Identify other members of your family, such as brothers, sisters, nephews, nieces, uncles and aunts whom you may want to remember as well as any friends whom you may want to benefit by giving them certain items that form part of your estate. Ensure that their names are spelt correctly. If you want to make gifts to certain organizations ( such as PAWS, SPCA, WWF, or welfare organizations or religious institutions, etc) ensure that the names of these organizations are correctly spelt and can be identified.

6. Contact your executors and obtain their consent.

7. Get 2 witnesses. In most cases, the lawyer who drafts the will, would be one of the witnesses. But this is only a practice. In reality any 2 persons who are not beneficiaries under the will and not their spouses can be witnesses.

8. Go over the draft copy until you are satisfied and then make fair copies. But destroy the draft copies.

9. Seal the will and the copies and keep them in a safe place. Inform the executors where it is kept ( e.g. in a safety deposit box in a bank, in a drawer or in a safe).

10. Remember you do not have to inform your beneficiaries what you have bequeathed them. You will have to decide whether you want to inform your family members that you have made a will.

ONE FINAL COMMENT

A testator is not prevented from dealing with his property in any way he sees fit, subsequent to the making of a will. Until the testator dies, he has a right to deal with his property in any way he likes. Therefore a testator can sell his houses(s), though he has bequeathed it to his wife or child. The result will be that if a particular item of property is no longer present because it has been disposed off by the Testator, then the beneficiary will not receive that particular item since it no longer exists as the testator’s property.

Alternatively a testator may acquire new assets or properties after the making of a will and if these items are not included n the will, then the law of intestacy will apply to these items of property that have not been dealt with by the testator in his will. Therefore it is prudent to revise your wills now and then.

WHAT ABOUT INTESTACY?

Intestacy occurs when a person dies without leaving a will or a valid will. The distribution of his estate is governed by the provisions pf the Distribution Act ,1958, especially the amendment brought about by the Distribution (Amendment) Act, 1997 to s. 6 of the main Act. Let us look at how the distribution will be done pursuant to s. 6

Where either a husband or wife dies leaving:

Relationship Share

Spouse only 100%

Spouse and parent(s) ½ - spouse

½ - parent(s)

Issue only 100%- issue

Parent (s) 100% - parents

Spouse and issue(s) 1/3 – spouse

2/3 – issue(s) living

Issue and Parent(s) 2/3 – issue

1/3 – parents

spouse, issue(s) and parent(s) ¼ - spouse

½ - issue

¼ - parent(s)

no spouse, no issue, no parent(s) surviving brothers & sisters in equal shares;

grandparents in equal shares

uncles and aunts in equal shares

great grandparents in equal shares

CONCLUSION

It is obvious that the provisions of s.6 DA do not provide for flexibility in disposing of the estate of the deceased. There are no avenues for making provisions to friends, or charitable organizations. Nor can the intestate choose how much he wants to give to a particular member of the family nor what he wants to give. Therefore it is prudent to make a will while you are alive so that the living can get on with their lives without much squabble.