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Introduction:
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A will is a crucial document that addresses complex legal matters and personal wishes. During the process of drafting a will, we often encounter various questions raised by clients.
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Therefore, today, we will explore some of the most frequently asked questions by clients and provide you with clear answers and advice. Whether you are preparing a will for the first time or looking to update an existing document, this article will help you better understand the importance of a will and the key issues you may encounter during the drafting process.
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Question 1: What are the legal requirements for making a will in Malaysia?
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In Malaysia, the requirements and procedures for making a will are governed by Wills Act 1959. The basic requirements are that the testator must be at least 18 years old and of sound mind.
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The will must be in written form, include at least one executor, and be signed in the presence of at least two witnesses.
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Question 2: Does a will need to be prepared by a lawyer?
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In Malaysia, although there is no legal requirement for a will to be drafted by a lawyer, consulting a lawyer can ensure that the will complies with all legal requirements and accurately reflects the testator’s intentions. Furthermore, a lawyer can provide professional advice based on the testator’s wishes, ensuring that the will’s execution proceeds smoothly after the testator’s passing.
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Question 3: Do all beneficiaries and executors need to be present when making a will?
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When making a will, neither the executors nor the beneficiaries need to be present. The will only requires the presence of the testator and two witnesses.
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Although the executor does not need to be present, it is generally recommended that the testator informs the executor of their role and the location of the will. This can help avoid issues such as the executor being unwilling to execute the will or the will being difficult to locate after the testator’s death.
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Question 4: Does a will in Malaysia need to be registered or stamped?
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In Malaysia, a will is considered a private document and does not need to be registered or subject to stamp duty.
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Before the testator’s death, they can draft a new will at any time according to their wishes, as a will only takes effect and becomes legally binding after the testator’s death.
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Question 5: Can a Malaysian make a will in a foreign country?
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Yes, Malaysians can make wills in foreign countries, but it must comply with the requirements of the Wills Act 1959.
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To ensure a will is legally enforceable in Malaysia, it’s advisable to include a jurisdiction clause clearly stating that the will is made according to Malaysian law and is legally valid in that jurisdiction.
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Question 6: Can a foreign citizen make a will in Malaysia?
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Foreign citizens are permitted to make wills in Malaysia, but they must ensure that their Malaysian will does not conflict with any will made in their home country.
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Question 7: Can a will created in Malaysia distribute foreign properties or allocate assets to foreign beneficiaries?
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A will created in Malaysia can distribute foreign properties and allocate assets to foreign beneficiaries. However, when the will involves immovable properties in Malaysia, foreign beneficiaries must obtain consent/ approval from state authorities before they can inherit these properties.
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Question 8: How much does it cost to make a will?
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In Malaysia, there are no laws created to govern the costs of making a will, therefore, the relevant costs charged by law firms or will drafting agencies can vary.
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Generally, the relevant fees can range from a few hundred to several thousand Ringgit in Malaysia. Simple wills may cost less, while complex wills (such as those involving properties in multiple countries or intricate trust arrangements) can be more expensive.
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When advising clients, we always stress the importance of not simplifying their wills merely to save costs. It is crucial to ensure that their wills accurately reflect their wishes to prevent legal issues faced by the beneficiaries.
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Question 9: How long does take for beneficiaries to inherit the estate after the testator passes away?
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After the testator of a will passes away, an application must be filed in the High Court of Malaya to obtain Probate. This legal process involves verifying the validity and legality of the will, and granting the executor the authority to manage and distribute the estate. Typically, the entire court process takes around 3 months to complete.
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Once Probate is granted, the executor must engage a lawyer to prepare documents for transferring the deceased’s immovable properties to the beneficiaries as stipulated in the will. This transfer process can take additional time, generally ranging from 3 to 9 months, depending on any special requirements for transferring immovable properties.
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Question 10: Besides distributing the estate, can a testator provide specific instructions to his executor and beneficiaries in his will?
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In addition to the distribution of the estate, a testator can include various specific instructions in his will to ensure that his wishes can be carried out in specific manners after his passing. These instructions can cover several important aspects, such as:-
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- Appointment of Guardians: If the testator has minor children, he can designate 2 guardians in the will to care for and raise his children after his passing.
- Funeral Arrangements: The testator can also specify his preferred funeral arrangements, including the type of ceremony, location, preference for burial or cremation, and any other specific requests.
- Management of Digital Assets: Instructions can be given on how to handle digital assets such as social media accounts, email accounts, and online storage files.
- Specific Bequests or Sales: Detailed instructions can be given for specific items or properties, such as family heirlooms, artworks, or items with sentimental value. Alternatively, instructions can also be given to the executor to sell certain assets and distribute the proceeds to beneficiaries.
- Trust Provisions: The testator can establish a testamentary trust, and appoint trustees to manage his assets under trust so to ensure financial support to his beneficiaries, especially minors or family members with specific needs.
- Charitable Donations: The will can direct a portion of the estate to be donated to specified charitable organizations, political parties or causes.
- Business and Intellectual Property Management: If the testator owns a business or intellectual property rights (like trademarks), provisions can be made in the will for the management, continuation, or sale of these assets.
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These provisions allow the testators to customize their wills to reflect their personal wishes and preferences, ensuring compliance with their intentions after their death.
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The above is the legal information we would like to share with our readers today with regard to the will owriting in Malaysia. If you have any legal questions about this legal process, you can contact us via WhatsApp: https://wa.link/q3kmv5
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