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: My husband and I bought our house jointly and we are staying together with our children.
However, my husband also have children from his previous marriage.
If anything happens to him, will the children from his first marriage have a share in our house with my children?
Rockwills Answer: Even though your husband has ended his matrimonial relationship with his previous spouse through proper divorce proceedings, that does not mean he is no longer the father to his children.
Hence, your children together with his first set of children (but not his ex-spouse) will be able to inherit his assets including his share of the house if no Will was written by him.
Since your house is currently occupied by your family, it may be awkward for you and your children to share the property with his children.
Hence, it is best that he writes a Will to separate out assets between the two families rather than sharing all the assets which could lead to disputes.
Alternatively, you may create a trust for the children from the first marriage.
The assets in the trust would not form part of the Will, therefore avoiding disputes and unhappiness between the two families.
Your husband can place his life insurance policies in the trust for the children from the first marriage, if he wishes to provide for them.
But if he intends to exclude his first set of children from any entitlement, it is recommended that he puts down a reason in his Will for doing so.
Question: My brother has gambling problems and has borrowed a lot of money from my father in many occasions.
Recently, they went into an argument which resulted in my father publishing in the newspaper to disown him.
According to your previous publication, if a person passes away without a Will, his children will be able to inherit.
So in this case, is my brother still considered a child of my father and therefore eligible to be one of the heirs even after such publication in the newspaper?
Rockwills Answer: In Malaysia, a child or parent cannot disown one another simply because we do not have any legislation recognising the act of disowning as legally valid.
However, your father can write a Will and not name him as a beneficiary.
If the father did not write a Will, all his children will still be able to inherit under the Distribution Act 1958 (amended in 1997) applicable to peninsular Malaysia and Sarawak, and Intestate Succession Ordinance 1960 applicable to Sabah only, and the publication of the act of disowning will have no effect on the right of the son to inherit.
To prevent possible complications, it is good to state a reason for the exclusion, for example, that he is a compulsive gambler.
If your father has already written a Will earlier, it would be opportune for him to consider rewriting his Will now.
This Q&A Column in 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]).