1. What is a will?

“Will” means a person’s written wish as to the distribution and administration of property after his death. The person who makes the will is called “the testator”. The person who inherits the property or receives a benefit under the will is called “a beneficiary”. The “executor” (if he is a man) or “executrix” (if he is a woman) is the person appointed by the testator to administer and distribute his estate upon his death.

2. What is the applicable law?

The law applicable to wills is the Wills Act 1959 (WA 1959). However, the WA 1959 does not apply to Muslims.

3. Who has the capacity to make a will?

A testator has to be 18 years of age or more and of sound mind to make a valid will.

4. What are the basic requirements of a will?

Generally a will must meet the following requirements:

  • A will must be in writing.
  • It must be signed by the testator in the presence of two or more witnesses who must be present at the same time.
  • No signature will give effect to anything underneath or following it or inserted after the signature was made.
  • The beneficiary or his/her spouse cannot be a witness.
  • The executor of a will may be a witness.

5. When does the testator appoint guardians?

When there are minors who require guardians in the event of the testator’s death (normally in the event the other parent being deceased or having died together with the testator).

6. When does the testator appoint trustees?

When any of the beneficiaries is a minor so that the trustee may hold in trust of the minor assets or properties and to control and manage the trust assets or properties accordingly and until such time the minor has reached the age of majority or is able to do so himself.

7. Can the contents of the will be changed?

It is generally advisable that changes should only be made by making a fresh will or through a codicil (“supplemental will”). Any other way of altering the will such as by crossing parts out or inserting words or by attaching anything to the will may render the will ineffective or invalid.

8. When should you make changes to your will?

It is advisable to make a fresh will upon the happening of the following events:

  • if you change your name;
  • if you marry or remarry unless the will was made in contemplation of your marriage.
  • if an executor dies or becomes incapable of carrying out his duties due to ill health or when he changes his name;
  • if a beneficiary dies or changes his name;
  • if you subsequently acquire new properties or assets or dispose of any property mentioned in the will;
  • if there is a major change in circumstances, for example, you may wish to add newly born children or grandchildren as your beneficiaries.

9. Is a will revocable and under what circumstances is it revoked?

A will is revocable (by the testator) before the testator’s death. It is also revoked under the following circumstances:

  • by another later will;
  • by marriage unless the will was made in contemplation of the marriage;
  • by written declaration of the intention to revoke before two (2) witnesses; and
  • by conversion to the Islamic faith.

10. Can a revoked will be revived?

A will once revoked may not be revived except by a re-execution or codicil showing an intention to revive the will. A will that is partly revoked and subsequently revoked in whole, when revived shall not extend to the part that was previously revoked in part unless the contrary is shown.

11. Where should the will be kept?

The will should be kept in a safe place, preferably with your lawyer. It is also important that your family and executors know where you have kept the will.

12. What about my money in the Employees Provident Fund?

It all depends whether you have nominated anyone to receive the funds in your EPF account (“amount standing to your credit or due to you”) upon your death.

If you have made a nomination under the EPF Act, your funds in your EPF account will be given solely to the nominee regardless of what you state in your will provided that:

  • if the nominee is a minor (below 18 years old), he will normally only receive the funds when he reaches the age of majority unless the EPF Board is satisfied that it is expedient that the sum nominated or any part thereof should be paid and applied for the maintenance or otherwise for the benefit of that nominee;
  • if the nominee is medically unfit to manage himself or his affairs, the EPF Board may, if it is satisfied, pay the sum nominated or any part thereof to the person who in its opinion is managing the affairs of such nominee;
  • if the nominee is of unsound mind and no committee of his estate has been appointed, the EPF Board may pay the sum nominated or any part thereof to any person who satisfies the Board that he will apply it for the maintenance and benefit of such nominee;
  • where you are a Muslim and you have made a nomination, the nominee shall receive your EPF monies as an executor or executors and not solely as a beneficiary and shall distribute such amount in accordance with the Islamic law.
  • where the nominee dies after your death but before any sum has been paid to him as nominee, then the sum payable shall be paid in the same manner as if you have not made any nomination.
  • your EPF nomination is also revoked as follows:
    • upon the death of the nominee during your lifetime as member; or
    • by notice of revocation made by you as member; or
    • by subsequent nomination made by you as member in which case the later nomination will supercede the earlier.

If you have not made a nomination, then the following will apply:

Your funds will be distributed under the law in accordance with the Distribution Act 1958. Provided if the sum is less than RM20,000 and no grant of probate or letter of administration or distribution order as the case may be is produced within the period of two months from the date of such death, the Board may pay all or any part of the amount without requiring the grant of probate or letter of administration or distribution order-

  1. to a person who appears to the EPF Board to be entitled and likely to be given the grant of probate or letters of administration or distribution order; or
  2. to a person who in the opinion of the EPF Board is beneficially entitled to the estate of the deceased member;

13. What if you have not made a will?

If you have not made a will upon your death, then all your properties will be administered according to the Distribution Act 1958. Please click here to know about it. If you a Muslim, then please click here for information on the distribution of properties under Syariah law.

Copyright Johore Bar

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