Borneo Post with the expert help of Rockwills Trustee Bhd, the leading specialist in estate planning having pioneered wills and trust 24 years ago, is publishing a regular Q & A column on estate planning.
It will feature questions which readers have in mind but don’t know who to ask.
Question: Can I write a Will for someone when I am the beneficiary in the Will? Is there any conflict of interest?
Rockwills Answer: There are no restrictions on writing a Will.
However, if the Will is contested in court later, the court may find that suspicious circumstances exist and probate will not be granted unless the suspicion is removed.
To quote a judge in a case, “it is not the law that in no circumstance can a solicitor or other person who has prepared a Will for a testator take a benefit under it.
But the fact creates a suspicion that must be removed by the person propounding the Will (that is, the executor who applies the grant of probate).
The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.”
As such, it may be advisable not to write the Will for a person when you are the beneficiary under it unless you are very sure that nobody will contest the Will, or that any suspicion that arises can be dispelled easily.
Question: What are the rules governing will writing in Malaysia? Can you explain the rules in depth please.
Rockwills Answer: The question requires a very lengthy reply.
However, here are some basic rules on will writing.
In Malaysia, the law on Wills are governed by the Wills Act 1959, which applies to West Malaysia and Sarawak, and Sabah’s Wills Ordinance (Sabah Cap.158).
Both statutes are similar in nature and does not apply to Muslims.
For a person to be a testator, he must fulfil a few basic criteria.
First, he must reach the minimum legal age of 18 years old (under the Wills Act 1959) or 21 years old (under the Wills Ordinance).
Once the person fulfils this criteria, he must have the mental capacity to sign his Will and must not be incapacitated that is caused by illness or drugs or alcohol.
When the testator signs his Will, he must do so in the presence of 2 persons acting as witnesses and thereafter the two witnesses must sign the Will in the presence of the testator.
The witnesses must be at least 18 years old.
They must not be mentally incapacitated and must not be blind.
It is advisable that the witnesses should not be named as beneficiaries or married to a beneficiary to avoid being disqualified from the inheritance.
When preparing a Will, the testator will have to give instructions on the following matters:
a. Who shall be named as the executor and substitute executor?
b. If the testator has minor children, who should be appointed as guardian in the absence of both parents?
c. Which assets are to be given to which beneficiary or beneficiaries?
d. Who will receive the remaining assets that was not specifically given?
When a person writes a Will, it is personal in nature.
The contents of each person’s Will is different due to a variety of reasons such as the type of assets owned and to be given, the status of the testator’s relationship with his family members or intended beneficiaries, the conditions that the testator wish to place on the gifts, the country where the assets are located and the debts of the testator.
Writing a Will should be an exercise done with a professional estate planner to ensure that the instructions are clear, practical and can be carried out by the executor.
It should not be taken lightly as it affects your loved ones and whether you leave a legacy of love for them or a legacy of hate between them.
This Q&A Column is published as a joint public service and educational initiative with Rockwills Trustee Bhd.
Please email your questions related to Estate Planning to [email protected] or Rockwills’ Training & Business Development Senior Manager Sam Chan ([email protected]).