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: I really need your expert advice on whether we can prepare our own Will by getting an Executor and two witnesses to sign on the Will documents. The question I would like to ask is: Is the Will we prepare ourselves without using the services of the law firms or Trustee Firms LEGAL? Will executing the Will and obtaining the Probate later be a problem?
Answer: Whether or not your Executor is able to obtain Probate does not depend on who prepares your Will but rather whether your Will complies with the requirements set down by the Will Act 1959 (for Peninsular Malaysia and Sarawak) and Wills Ordinance (for Sabah) as follows:
• The Will must be in written form,
• Testator signs the Will in the presence of two witnesses,
• Two witnesses sign the Will in the presence of the testator,
• Testator must be above the age of 18 (for Sarawak) or 21 (for Sabah),
• The testator must be of sound mind
Although it is essential that a Will must be valid in order to obtain probate, that is not the only objective for having a Will written.
It is important that you do give careful consideration to the possible outcome from every distribution instructions, for example, how will a particular instruction affects your beneficiaries.
We have seen improperly worded instructions that cause disputes and misunderstanding between family members.
Take for example an actual case where the testator gave his property to his two sons born of different mothers and the two ended up in a lengthy court dispute.
Aside from that, you should also think about extinguishing any debt like outstanding mortgages that need to be paid off before being transferred to your beneficiaries, otherwise there may be penalty interest or foreclosure if the mortgage is not serviced in time.
Question: I made a new Will after my late husband passed away many years ago. Fast forward to today, I am in a new relationship and I heard that if we were to get married, my Will is no longer valid. Is that true? If it is true, how do I go about protecting my children’s inheritance?
Answer: It is true according to Section 12 Wills Act 1959 (for Peninsular Malaysia and Sarawak) and Wills Ordinance (for Sabah), which states that a Will made prior to the testator’s marriage shall be revoked.
Since you are married, all you need to do is write a new Will again, but you are advised to include your spouse as one of your beneficiaries instead of just prioritising your children due to the Inheritance (Family Provision) Act 1971 which provides protection to spouse and children.
On another note, your Will done after your marriage, will not be revoked if you go through a divorce in future until you are remarried.
That means, if you were to pass away after you have divorced but before you are remarried, the Will which named your ex-spouse as your beneficiary will still be valid.
Hence, it will be important for you to review your Will if there is a change in your marriage status.
Question: Is it normal to have multiple copies of the same Will made for safekeeping? I am worried my copy of the Will will be damaged and I would not have another copy for backup.
Answer: Whilst you can keep as many copies of the Will, but do note that only the original Will would be accepted for Grant of Probate application. Furthermore, making many copies of your Will could increase the risk of loss of confidentiality.
Sensitive information leaked out could cause breakdown of your relationship with your family members.
We suggest that you should look for a proper Will Custody Centre to have peace of mind. Such service ensures that your Will is confidential, prevents tampering and at the same time can be found when it is needed.
Moreover, it is a very cost effective solution in the long run. Take Rockwills Wills Custody Services for example.
All Wills are kept centralised in a safe room with industrial grade bank vault door, with fire and flood proof features. We have even taken extra measure to install room humidification control system to preserve our clients’ Wills. Our Will Custody Room is also under 24-Hour surveillance to ensure utmost security.
We do extend our Will Custody Services to Wills that are not written by Rockwills. Do contact our Estate Planners for more information.
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]).