BORNEO POST with the expert help of Rockwills Trustee Bhd, the leading specialist in estate planning having pioneered wills and trust 26 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 1: My uncle passed away recently. My cousin was very unhappy when he read the will and destroyed it in front of his family. I was quite shocked that my uncle’s wishes in his will were being torn apart just like that. Is a will that fragile?
Rockwills Answer: It is very sad to hear that your uncle’s wishes were simply disregarded by his son in that manner. As a general rule, the District Officer or Amanah Raya Berhad in Kuching will require the original will to be presented to obtain the Grant of Probate.
Theoretically, if the destroyed Will can still be salvaged or there is a copy of will, there might still be a glimpse of hope for the will to be probated, provided there is supporting evidence to prove the will was destroyed without the testator’s intention to revoke the will.
However, it is easier said than done and it is likely to result in costly court procedures. This is the reason why we can never emphasise enough the importance of engaging a professional to do estate planning and safe custody of a will.
A professional estate planner would usually analyse whether the instructions in the will would cause any discontent among family members. If there is, the testator would be advised accordingly, for example, to include a clause in the will explaining the reason for such distribution and to appoint an executor who is neutral and capable to handle the potential disputes.
Lastly, the testator would be advised to keep the will in a safe place where the will can only be accessed by the executor after the testator has passed away. A will is a very important yet delicate document.
We have a saying that it is only a job half done to write the will without ensuring the will is properly secured. If you have written your will, make sure that you appoint a neutral executor and keep your Will in a place that specialises in will custody services.
Question 2: My brother-in-law was the appointed executor in my father-in-law’s will. Ever since he took up the executor’s role, distrust from the beneficiaries have been growing especially when he started to demand my mother-in-law transfer her portion of the properties to him. We felt that something is not right, do we have the right to remove him as the Executor before it is too late?
Rockwills Answer: The executor is obliged by law to fulfil the wishes of the testator and act in the best interest of the estate. In order for the executor to carry out his duties, he is given certain powers under the Probate and Administration Act 1959.
As such, the executor will have to take control of the assets. This simply means transferring assets into the name of the executor so that it can be used by the executor to pay the debts of the deceased before distribution to the beneficiaries.
As you can imagine, the work is tedious and time consuming as the executor must adhere to a certain standard of care when carrying out his duties. The executor is required, among other things to do, to prepare a set of accounts every year, lodge the tax filing for the income of the estate every year, to keep the beneficiaries informed from time to time the progress of the administration.
When the executor fails to carry out the duties, there is a possibility that the beneficiaries may seek legal recourse against the executor especially when the executor fails to account for assets that he took charge of. It is extremely important to appoint the right executor who has the experience, knowledge, integrity and time to act professionally as the executor.
A trust company would have these qualities and more – continuity, accountability, dedicated personnel and resources to complete the administration of the estate in a timely manner.
This will ensure that the instructions stated in the Will are carried out and the beneficiaries being informed regularly of the progress. At the same time, it will also avoid the beneficiaries having to expend their own money to take legal action against the executor.
Consult an estate planner that has experience in dealing with clients with foreign assets when you rewrite your Malaysian will.
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 and business development assistant general manager Sam Chan ([email protected]).