FAQ ROCKWILLS Will Writing Writer

Q: I have bought a life insurance policy and nominated my wife (mother/father/sister/brother/etc) as beneficiary. Do I still need to mention it in my Will?

Q: I am the joint owner of a house or property. Can I will away to whoever I wish?

Q: If I have nominated my parents as the beneficiaries of my Employee Provident Fund, can I subsequently will it away to my spouse? Can my Will revoke the nomination I made earlier?

Q: I am going to inherit some assets from my father. Can I specify them in my will, even though I do not own the assets at present?

Q: I am an illegitimate child and my father, who died recently, was an orphan. He did not leave a Will. Am I able to claim from his estate as I am his only child? My mother is married to someone else and lives in another country.

Q: I have written a few Wills, which I have lost. Recently, I had another Will written. If any of my old Wills are recovered after I die, which will be the valid Will?

Q: I will be getting married in a few months' time. I understand that if I write my Will now, my marriage will revoke it. What do I do in the meantime?

Q: I wrote a Will while working in the United States for five years. Now that I am back in Malaysia, is that Will recognised by the Malaysian courts?

Q: Does a Will need to be stamped or sealed?

Q: Can probate be granted on a copy of a Will?

Q: What happens if both witnesses to the Will have died or cannot be located when the Will is submitted to the court for probate?

Q: I own a private limited company. Can I Will the shares to someone but, at the same time, put in a condition that the shares cannot be sold without the consent of a particular person?

Q: Can I make alterations to my Will without writing a new Will?

Q: It is stated in my Will that "I give my wife ... RM100,000". After a divorce, she is no longer my wife and the description of my relationship with her is no longer valid. If I do not rewrite my will, will she still be able to inherit RM100,000 from me?

Q: I want to give everything to my children, but I may have one or two more children in future. Does it mean that I have to rewrite my Will each time I have a new baby?

Q: How reliable is BHLB Trustee Berhad (BTB)?

Q: If I have already set up a Trust Account, should I write my Will and vice versa?

Q: Can I appoint different persons as Executor(s) and Trustees?

Q: How fast can Probate be granted for distribution to be made?

Q: How will the executor(s) know of the death of the testator?

Q: What happens if there is a delay in applying for the Grant of Probate?

Q: What course of action can the beneficiaries take if the appointed executor is unwilling to apply for the Grant of Probate?

Q: I am a Malaysian with assets overseas. Do I have to write separate Wills in each of the country where my assets are located?

Q: Can I produce my Will on video-tape or CD instead of writing everything down?

Q: How many executors can be named in a Will?

Q: Can I appoint a foreigner to be an executor and trustee?

Q: I bought a house recently and it is charged to the Bank. If I give the house to my son, would my son have to settle the housing loan with the Bank before he inherits the house?

Q: Does divorce revoke a Will?

Q: Where the testator is the owner of a small business, what should he do?

Q I have bought a life insurance policy and nominated my wife as beneficiary. Do I still need to mention it in my Will?

Q I have nominated my sister in my life insurance policy but was told that my wife and children are the true beneficiaries. Is this true? If yes, how do I ensure she gets the money?

Q I am the joint owner of a house. Can I Will it away to whoever I wish?

Q I have written a Will and left all my possessions to my children, mentioning their names in the Will. I have adopted a few children, who have now left the family. I have left their names out of the Will. Can these adopted children, who have my surname, contest the Will?

Q How many executors can be named in a Will?

Q Recently I purchased unit trust through my EPF, and wish to know what will happen to these investments if I were to pass on? Will my EPF nominees inherit these investments as well?

Q Can I produce my Will on video-tape instead of writing everything down?

Q I have written a few Wills, which I have lost. Recently, I had another Will written. If any of my old Wills are recovered after I die, which will be the valid Will?

Q It is stated in my Will that "I give my wife X RM10,000." After a divorce, she is no longer my wife and the description of my relationship with her is no longer valid. If I do not rewrite my Will, will she still be able to inherit RM10,000 from me?

Q Can I appoint a foreigner to be an executor and trustee?

Q I understand that Singapore citizens can only own property in Malaysia by paying a levy. Does it mean that if they inherit property in Malaysia, a levy will also be imposed?

Q I bought a house recently and it is charged to the bank. If I give the house to my son, would my son have to settle the housing loan with the bank before he inherits the house?

Q I am an illegitimate child and my father, who died recently, was an orphan. He did not leave a Will. Am I able to claim from his estate as I am his only child? My mother is married to someone else and lives in another country.

Q I am an orphan. My mother never came back after leaving me with my nanny, who has raised me since then. My nanny is rather old now and dependent on me. When I am gone, will she benefit from my assets?

Q I am going to inherit some assets from my father. Can I specify them in my Will, even though I do not own the assets at present?

Q I will be getting married in a few months' time. I understand that if I write my Will now, my marriage will revoke it. What do I do in the meantime?

Q I wrote a Will while working in the United States for five years. Now that I am back in Malaysia, is that Will recognised by the Malaysian courts?

Q Does a Will need to be stamped or sealed?

Q What happens if both witnesses to the Will have died or cannot be located when the Will is submitted to the court for probate?

Q I own a private limited company. Can I will the shares to someone but, at the same time, put in a condition that the shares cannot be sold without the consent of a particular person?

Q Does divorce revoke a Will?

Q Can probate be granted on a copy of a Will?

Q Can I make alterations to my Will without writing a new Will?

Q Can I write a Will for someone when I am the beneficiary in the Will? Is there any conflict of interest?

Q Is it advisable to put a clause in a Will that should any of my beneficiary challenge the validity of my Will he/she shall not inherit anything?

Q Can I will away a piece of land which is registered in a private limited company's name where I am the majority shareholder?

Q I want to give everything to my children, but I may have one or two more children in future. Does it mean that I have to rewrite my Will each time I have a new baby?

Q Can a Power of Attorney be used to transfer my assets to my family upon death?

Q I don't want my husband to inherit a single cent from my estate but I was told that I should give him at least RM1.00 under my Will to prevent him from challenging my Will. Is this true?

Q Can I write my Will in Chinese?

Q At what age will my children inherit my property?

Q Can I keep my Will in my Bank's safe deposit box?

Q Many people have died suddenly due to heart attack or accidents without any last words to their family. Can I leave special instructions and loving statements in my Will expressing my love to them?

Q I am now a financial service provider. Is it necessary to add Will-writing to my range of services?

Q I am very conservative and would like my trustees to place all my moneys in fixed deposits for the education and maintenance of my children. I do not wish that they invest in the stock markets. What should I do?

Q Can I write my own Will or use a sample downloaded from the do it yourself section or follow a simple diskette on simple Will?

Q Can I write a Will if I have more liabilities than assets now?

Q Can I put everything under my company's name instead of writing a Will?

Q Can I leave the Distribution Act 1958 (as amended in 1997) to distribute my assets?

Q Can I write my own Will?

Q Can I appoint guardians for my children and leave some money to my guardians?

Q Which authority has the right to issue an order for the administration of the deceased's estate?

Q Can one of my beneficiaries be appointed as the executor of my Will?

Q Can I make changes to my Will as and when I like?

Q Can a Will override a nomination made in my insurance policy or EPF?

Q How professional are your Will-Writers?

Q Do I need to pay for minor changes in my Will?

Q Why should I keep my Will with Rockwills?

Q What happen if I have no beneficiaries to will my assets?

Q Is it advisable to write a Joint Will with my spouse so that I can save the Will-writing fee?

Q Can I buy a standard format Will or download them from the Internet?

Q What will happen if I do not know who to appoint as my executor and trustee?

Q I am a very superstitious person, will writing a Will brings any bad luck to me?

Q I am in the process of preparing my Will, but I am undecided in the disposition of my properties?

Q: What does the term testator mean?

The testator is the person who is making the will.

Q: What does the term residue mean?

The residue of your estate includes everything else that you own after all debts, funeral expenses and all legacies and tax has been paid. That is to say every thing you own when you pass away which has not been gifted elsewhere in your will. If you are going to leave the residue of your estate to your spouse or your partner you can also say what is to happen to the residue if your spouse or partner passes away before you for example if the residue of your estate is to pass then to your children.

Q: Can probate be granted on a copy of a Will?
Yes, provided it is proved that the original has been lost or accidentally destroyed.

WITNESS

Q What happens if both witnesses to the Will have died or cannot be located when the Will is submitted to the court for probate?

A The court will require an affidavit from the person who was present when the Will was executed. If there is no such person, it will require an affidavit from a person who can verify the authenticity of the testator's signature.

Q: If I have already set up a Trust Account, should I write my Will and vice versa?
A Will is necessary for it is a document to facilitate smooth and efficient distribution of other assets to intended beneficiaries.
A Trust on the other hand is an estate planning arrangement to prevent the necessary assets from being frozen or falling into the distribution process under the Will or the Distribution Act.
They are complementary instruments and you may need both, depending on your specific circumstances.

Q: Can I appoint different persons as Executor(s) and Trustees?
Yes, you can but there will be additional cost involved. This is because on the death of the testator, the executor will be vested with the estate and for the properties that are to be dealt with by the trustees, the executor(s) is to transfer or deliver such properties to the trustees. It is also sometimes difficult to assess at what point in time executorship ends and when trusteeship begins.
The trustee will also manage the estate in accordance with the instructions or powers given to him under the Will or according to the Trustee Act. As a safeguard, a Trustee cannot benefit by virtue of this office as all profits much be accounted for.

Q: How will the executor(s) know of the death of the testator?
When the testator appoints an executor, the executor is firstly informed that he/she is appointed by the testator as executor of the estate. Only upon agreement as to the appointment will the executor carry out the functions of an executor upon the death of the testator. Upon the death of the testator, the executor will be informed by either responsible family members or friends for the testator would have chosen someone who he/she can trust and who is close to him/her, such as his wife, her husband, close friends, etc. who will have contact with the testator and his/her family. As for appointing a Trust Corporation as Executor or Trustee such as Rockwills Trustee, it is advisable for the testator to inform his/her family members of such an appointment so that there will be no delay in the administration of the estate.

Q: Where the testator is the owner of a small business, what should he do?
The testator should include in his Will a clause allowing his executors and trustees to continue his business so far as it is necessary to enable it to be sold as a going concern. The advantage of such a clause is that:

it prevents a decrease in the value of the goodwill of the business;
it enables the best possible price to be obtained for the business.

ONE OR MORE EXECUTORS

Q How many executors can be named in a Will?

A Under the law, there can be a minimum of one and a maximum of four executors. But if there are minor beneficiaries, at least two persons should be appointed.

WRITTEN FORM ONLY

Q Can I produce my Will on video-tape instead of writing everything down?

A No. One of the requirements of a Will is that it has to be in writing.However, a member of the armed forces engaged in actual military service or a mariner at sea can make what is known as a privileged Will. This type of Will does not have to be in writing. As such, video-taping may be acceptable.

FOREIGNER AS EXECUTOR

Q Can I appoint a foreigner to be an executor and trustee?

A Yes. However, before you do so, you should consider whether it is practical. How long will he or she be in the country? In addition, he or she may not be well versed with the country's system and would not have the time to come to Malaysia to perform the duties involved as an executor. This can cause unnecessary delays in the estate administration.

WRITTEN IN THE UNITED STATES

Q I wrote a Will while working in the United States for five years. Now that I am back in Malaysia, is that Will recognised by the Malaysian courts?

A It will be recognised by the courts here if the Will was made in accordance with the manner required by the Wills Act in Malaysia, or the laws of the United States pertaining to Wills.

Q: I am a Malaysian with assets overseas. Do I have to write separate Wills in each of the country where my assets are located?
The nature of the assets has to be determined, that is, whether it is movables or immovables.

The general rule for "movables" is the law of the testator's domicile applies; whereas for "immovables", the law of the country where the property is situated applies.

If it involves immovables, then it is advisable to write another Will applicable to that country. The country concerned must be identical governing laws, such as Singapore and England. The administration of the estate will be more efficient and faster. For example, if a Malaysian has a piece of immovable property in United Kingdom, and he only writes one Will, the Grant of Probate has to be extracted from the Malaysian Court and then be resealed in the court of United Kingdom. If there is another Will dealing solely on the property in United Kingdom, then that Will can be admitted for Probate in United Kingdom without having to wait for the extraction of the Grant of Probate from the Malaysian court.

Another determinant for immovable properties overseas is whether the piece of property is jointly or wholly owned by the testator. If it is wholly owned, then there is no problem. However, if it is jointly owned under a joint tenancy, it cannot be willed away.

If in doubt on the laws of other countries, it is advisable to seek professional legal assistance from those countries concerned.

OUTSTANDING HOUSING LOAN

Q I bought a house recently and it is charged to the bank. If I give the house to my son, would my son have to settle the housing loan with the bank before he inherits the house?

A If there is nothing in the Will to indicate otherwise, a beneficiary will have to pay off the loan before he or she can inherit the property.

As such, it might be advisable to take up a mortgage insurance which will take care of the matter. Alternatively, it can be mentioned in the Will that the loan is to be paid from the testator's estate.

LEVY ON PROPERTY

Q I understand that Singapore citizens can only own property in Malaysia by paying a levy. Does it mean that if they inherit property in Malaysia, a levy will also be imposed?

A The National Land Code provides that foreigners (not only Singapore citizens) can own (this includes inheriting) property in Malaysia only after prior approval from the state government has been obtained. The state government may grant the approval subject to such terms and conditions as may be specified by the state.

The law on the imposition of levy has been changed a few times, following the prevailing economic situations.

Presently, the levy has been removed and hence no levy will be imposed. However, there could be changes to the law in future, and all transfers shall be subject to the law governing such transfers at that time.

WILLING AWAY A SHARE IN A HOUSE

Q I am the joint owner of a house. Can I Will it away to whoever I wish?

A Yes, you can Will away your share in the house.

WILL-WRITER AS THE BENEFICIARY

Q Can I write a Will for someone when I am the beneficiary in the Will? Is there any conflict of interest?

A There is no restriction on writing a Will. However, if the Will is contested in court later, the court may find that suspicious circumstances exist and probate will not be granted unless the suspicion is removed. To quote a judge in a case, "It is not the law that in no circumstances can a solicitor or other person who has prepared a Will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the Will (that is, the executor who applies for the grant of probate). The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed."

As such, it may be advisable not to write the Will for a person when you are the beneficiary under it unless you are very sure that nobody will contest the Will, or that any suspicion that arises can be dispelled easily.

ONLY THE LATEST WILL IS VALID

Q I have written a few Wills, which I have lost. Recently, I had another Will written. If any of my old Wills are recovered after I die, which will be the valid Will?

A The court will recognise your latest Will as the valid one provided it was made in accordance with the requirements laid down by the law.

CHALLENGING THE WILL

Q Is it advisable to put a clause in a Will that should any of my beneficiary challenge the validity of my Will he/she shall not inherit anything?

A Firstly putting such a clause in your Will will not prevent a beneficiary from challenging your Will. However, it might deter them if they don't have a very strong case.

NOTHING FOR SPOUSE

Q I don't want my husband to inherit a single cent from my estate but I was told that I should give him at least RM1.00 under my Will to prevent him from challenging my Will. Is this true?

A Any amount given to your husband will not prevent him from challenging your Will. It is not necessary to give anything to your husband if you do not wish to. However you should state a reason in your Will as to why you are excluding your husband from your Will. Alternatively you can state in your Will that you are aware you are leaving nothing to your husband. This will reduce the possibility of him succeeding in challenging the validity of your Will by alleging that you were of unsound mind when writing your Will. (The same also applies if a man wishes to leave nothing for the wife.)

AFTER DIVORCE

Q Does divorce revoke a Will?

A Divorce, unlike marriage, does not revoke a Will. Therefore, if you have divorced or are separated, you should consider rewriting your Will.

FORMER SPOUSE

A The former wife will still be able to inherit the RM10,000. The rule is that a Will speaks from its date as to the object (that is, the beneficiary) of a gift unless a contrary intention appears in it. This means that if a person answers the description at the date of the writing of the Will, the gift will pass to him or her even though at the date of the testator's death, the person no longer answers to that description. However, a testator can override the rule by stating a contrary intention in the Will. For example, if he intends to give a gift to an employee, he can state that the gift will only take effect if the employee is still under his employment at the date of his death.

Q: I want to give everything to my children, but I may have one or two more children in future. Does it mean that I have to rewrite my Will each time I have a new baby?
If it is your intention that all your children shall inherit your estate in equal shares, it is not necessary to rewrite your Will. You can just use the term "children" without naming each child. This means that any child that survives you will get a share in your estate. Whether he or she was born before or after you made your Will is immaterial.

Q: I have written a Will and left all my possessions to my children, mentioning their names in the will.
I have adopted a few children, who have now left the family. I have left their names out of the Will. Can these adopted children, who have my surname, contest the Will?
In making a Will, you have the freedom to choose your beneficiaries, but there are certain categories of people who can apply under the Inheritance (Family Provision) Act 1971, Malaysia, for reasonable provision to be made for their maintenance if nothing, or an insufficient amount, is left to them under the Will.

These people include:

(a) A wife or husband;
(b) A daughter who has not been married or who is, by reason of mental or physical disability, incapable of maintaining herself.
(c) A son who is, by reason of mental or physical disability, incapable of maintaining himself.
(d) An infant son (below the age of 21).

If your adopted children fall under categories (b), (c) or (d), they have the right to apply to court to have your Will varied to make reasonable provision for them because the definition of a "son" or "daughter" under the Inheritance (Family Provision) Act 1971, Malaysia, includes legally adopted children. However, whether they will succeed or not depends on the merits of the case.

FUTURE CHILDREN

Q I want to give everything to my children, but I may have one or two more children in future. Does it mean that I have to rewrite my Will each time I have a new baby?

A If it is your intention that all your children should inherit your estate in equal shares, it is not necessary to rewrite your Will. You can just use the term "children" without naming each child. This means that any child that survives will get a share in your estate. Whether he or she was born before or after you made your Will is immaterial.

BEFORE AND AFTER THE WEDDING

Q I will be getting married in a few months' time. I understand that if I write my Will now, my marriage will revoke it. What do I do in the meantime?

A You can write a Will now, but put in a clause stating that your imminent marriage will not revoke your Will. The name of the person whom you are marrying must also be stated in the Will.

GREAT EXPECTATIONS

Q I am going to inherit some assets from my father. Can I specify them in my Will, even though I do not own the assets at present?

A Yes. This is because one of the characteristics of a Will is that it only takes effect upon death. As such, even though the assets do not belong to you at the time of writing your Will, they may belong to you at the time of your death, in which case you can pass them on to your beneficiaries.

NO CLAIMS FOR ILLEGITIMATE CHILDREN

A According to the law, you will not be entitled to claim from your father's estate as you are illegitimate, but you can claim from your natural mother's estate provided she does not have any other legitimate children.

MAKING SURE ASSETS GO TO NANNY

Q: I am an orphan. My mother never came back after leaving me with my nanny, who has raised me since then. My nanny is rather old now and dependent on me. When I am gone, will she benefit from my assets?
Since she never legally adopted you, she is not entitled to any of your assets unless you have written a Will making provisions for her. If you do not have a Will written, you are not married and do not have any next of kin, your assets will go to the Malaysian government.

APPOINTMENT OF GUARDIANS

Q Can I appoint guardians for my children and leave some money to my guardians?

A Yes! You can appoint guardians for your young children in a Will. As for payment to the guardians, special instructions can be drafted in your Will to pay them periodic payments only if they act.

LEAVING OUT ADOPTED CHILDREN

A In making a Will, you have the freedom to choose your beneficiaries, but there are certain categories of people who can apply under the Inheritance (Family Provision) Act 1971 for reasonable provision to be made for their maintenance, if nothing, or an insufficient amount, is left to them under the Will.

These people include:

a. A wife or husband

b. A daughter who has not been married or who is, by reason of mental or physical disability, incapable of maintaining herself.

c. a son who is, by reason of mental of physical disability, incapable of maintaining himself.

d. An infant son (below the age of 21)

If your adopted children fall under categories (b), (c) or (d), they have the right to apply to court to have your Will varied to make reasonable provision for them because the definition of a "son" or "daughter" under the Inheritance (Family Provision) Act 1971, includes legally adopted children. However, whether they will succeed or not depends on the merits of the case.

INHERITANCE AGE

Q At what age will my children inherit my property?

A A person is legally capable of holding property upon attaining the age of 18. If you want your children to inherit later then it should be expressly stated in your Will the age which they should inherit.

SPECIAL INSTRUCTIONS/TERNS OF ENDEARMENT

Q Many people have died suddenly due to heart attack or accidents without any last words to their family. Can I leave special instructions and loving statements in my Will expressing my love to them?

A Yes. You can. As the Will is an expression of your intentions and wishes, you can include special clauses and instructions to your loved ones which need not relate to money. By including such clauses, you have made your Will very special and personal for which your loved ones will never forget your special words to them.

PROTECTING YOUR ASSETS

A Although from the financial planning point of view that might not be the best approach, if that is really your wish, it has to be clearly and expressly stated in your Will.

MORE LIABILITIES THAN ASSETS

Q Can I write a Will if I have more liabilities than assets now?

A You may have more assets accumulated years later and you would need a Will to distribute them, as a Will is only effective upon death. You may also create capital wealth by various investments such as unit trust.

However, if you have a lot of liabilities in your business, then it would be wise to create a trust to maintain those assets against creditors, claims and from affecting yourself and your family financially.

TRANSFERRING ASSETS TO COMPANY

Q Can I put everything under my company's name instead of writing a Will?

A The first issue that will arise is what will happen to your shares in the company when you pass away. Who are going to benefit and how are you going to effect the transfer of those shares? Secondly, if it is not purely a holding company you should consider the risk of losing everything should the business fail and this defeat the purpose of limited liability. Thirdly, there will be property gains tax upon disposal of any immovable property irrespective of how long it was acquired. Last but not least companies will need to submit their annual reports and audited accounts every year and these will be considered public documents. As such, there will be a lack of confidentiality.

UNDECIDED IN THE DISPOSITION OF PROPERTIES

Q I am in the process of preparing my Will, but I am undecided in the disposition of my properties?

A In this case, get a basic Will done first. With this Will, you have immediately effected a protection plan. Then, you can decide on the proper detailed distribution and contact a Professional Will-Writer to rewrite your Will when you have prepared the details of your final plan.

COMPANY'S PROPERTY

Q Can I will away a piece of land which is registered in a private limited company's name where I am the majority shareholder?

A No. The private limited company is a separate legal entity and is the true owner of the piece of land. You only own it indirectly through the shareholdings in the company and as such you cannot will it away. However, you can instead will away your shares in the Company.

RESTRICTION ON SHARE TRANSFER

Q I own a private limited company. Can I will the shares to someone but, at the same time, put in a condition that the shares cannot be sold without the consent of a particular person?

A No. Putting the condition in the Will cannot be legally effective because the Will does not bind the company whose shares are being held as it is a separate legal entity. Any restriction on the transfer of shares has to be mentioned in the Memorandum and Articles of Association of the company concerned.

DISTRIBUTION ACT 1958 (AS AMENDED IN 1997)

Q Can I leave the Distribution Act 1958 (as amended in 1997) to distribute my assets?

A You may like the way the Act distribute your assets but to ensure that your loved ones receive your assets sooner than later, a Will can help. Moreover, with a Will, you can avoid the need for sureties and appointment of a suitable administrator, Also, your young children's welfare can also be looked after when you exercise your right to appoint a guardian for them in you Will.

ADMINISTRATION OF ESTATE

Q Which authority has the right to issue an order for the administration of the deceased's estate?

A i. If one has a Will, the High Court will have the power to issue a Grant Of Probate. (In Sarawak this power is vested in the Probate Officer of various districts).

If a deceased's gross estate (i.e. without deduction for debts and liabilities) exceeds RM600,000.00 and he/she dies without a Will, the family will have to apply to the High Court for Letters of Administration.

ii. If a deceased's assets gross estate does not exceeds RM600,000.00 and must also consist of immovable, the power to make an order on the administration of the estate is vested in the District Land Administrator under s.3 Small Estate (Distribution) Act 1955.

iii. Amanah Raya Berhad designated as the Public Trustee the Public Trust Corporation Act 1995 can administer the estate of a person which consist wholly movables and not exceeding RM600,000.00. This is stated under s.17 Public Trust Corporation Act 1995.

POWER OF ATTORNEY

Q Can a Power of Attorney be used to transfer my assets to my family upon death?

A A Power of Attorney normally allows the person whom the power is granted (the "donee") to deal with the property of the donor e.g. selling, leasing or charging it or to enter into other legal transaction on behalf of the donor. A Power of Attorney will be revoked upon the death of either the donor or donee and as such it cannot be used like a Will to effect transfer of your assets to your family upon your death.

Q: What happens if there is a delay in applying for the Grant of Probate?
Generally, petition for the Grant of Probate can be made as soon as the testator dies. However, where there is a delay of three years or more from the time the testator died, the executor will have to give reasons to the court for the delay in applying for Probate.

Q: What course of action can the beneficiaries take if the appointed executor is unwilling to apply for the Grant of Probate?
Before the beneficiaries can appoint a Personal Representative known as an Administrator in place of the unwilling Executor, the Executor must firstly renounce his right to the executorship. One this is done, the Administrator can apply for Letter of Administration with Will Annexed in the Malaysian High Court when the value of the estate is more than RM600,000.00. However, if the estate is valued at RM600,000.00 or less if it consist of wholly movables, the Amanah Raya Berhad (Public Trustee) under Section 17, Public Trust Corporation Act 1995, Malaysia, can have jurisdiction to administer the estate. If the estate is more than RM600,000.00 consisting of movables and immovables or wholly immovables, the High Court will have jurisdiction.

If the executor refuses to renounce or carry out the duties of an executor, the beneficiaries can apply to the High Court for Citation. Citation is used to force the executor to decide whether he renounces or accepts the appointment and to carry out the duties of an executor. The executor must appear within eight (8) days from the date of Citation. If he does not appear, then he is deemed to have renounced the appointment.

Q: How fast can Probate be granted for distribution to be made?
The speed of Probate being granted depends largely on the executor and the schedule of the court. The executors of one of belated client was able to obtain the Grant of Probate within less than 2 months from time of his death. Generally, it may take up 6 months to a year or more before the executor can distribute to the beneficiaries.

BENEFICIARY AS EXECUTOR

Q Can one of my beneficiaries be appointed as the executor of my Will?

A There is no restriction in the Wills Act 1959 to appoint a beneficiary as an executor in your Will. In fact if a person is leaving everything to a single person and the beneficiary concerned is of majority age and can manage the money well, it is recommended that the person be appointed as the sole executor.

WILL, INSURANCE AND EPF

Q Can a Will override a nomination made in my insurance policy or EPF?

A i. Insurance Policy

Under s.164 (2) of the Insurance Act 1966 a nomination in an insurance policy cannot be revoked by a Will. If the nominee is the spouse, a child or a parent under s.166 Insurance Act 1996 (provided there is no spouse or child living at the time of nomination) then the nominee will enjoy the insurance money absolutely. However if the nominee is other than those mentioned above, under s.167 Insurance Act 1996 the nominee shall be the executor of the moneys and has a duty to distribute the insurance money according to the Will of the policyholder or if there is no Will according to the Distribution Act 1958 (as amended in 1997).

ii. EPF Regulation 7(1) of the Employees Provident Fund Regulations 1991 states that a nomination shall not be revoked by a Will..

EMPLOYEES' PROVIDENT FUND (EPF) NOMINEES TO REMAIN

Q Recently I purchased unit trust through my EPF, and wish to know what will happen to these investments if I were to pass on? Will my EPF nominees inherit these investments as well?

A In this case, the investments will be lumped into your estate and does not go back into your EPF account.

As such it will be distributed according to the Distribution Act 1958 (as amended in 1997) if there is no Will or follow your Will if you have made a Will.

Therefore to ensure the rightful nominees receive these investments, a Will must be written to include an instruction naming beneficiaries to these investments.

BENEFICIARY OF LIFE POLICY

NOMINEES OF INSURANCE POLICY

Q I have nominated my sister in my life insurance policy but was told that my wife and children are the true beneficiaries. Is this true? If yes, how do I ensure she gets the money?

A Yes, it is true if you do not have a Will as the Insurance Act 1996 states that any person other than spouse, children and parent (if single) will only receive the money in the capacity of an executor and must pass the money back to the deceased estate (or beneficiaries i.e. wife and children in this case). If your parents are alive they are entitled to a quarter of the money.

Therefore, if you want her to receive this money, you can either assign the policy to her or write a Will in which you name her as the beneficiary to this particular policy.

Q: I have bought a life insurance policy and nominated my wife (mother/father/sister/brother/etc) as beneficiary. Do I still need to mention it in my Will?
No. By virtue of Section 23 of the Civil Law Act 1956, Malaysia or Section 166 of the Insurance Act 1996, Malaysia, if the insured has nominated the spouse and/or children as beneficiary or beneficiaries, a trust will be created. The sum assured no longer forms part of the assured's estate. As such, the assured cannot will it away. The advantages of putting the sum assured under trust is that creditors can have no claim against it.

Q: If I have nominated my parents as the beneficiaries of my Employee Provident Fund, can I subsequently will it away to my spouse? Can my Will revoke the nomination I made earlier?
No. Under the Employee Provident Fund (EPF) regulations, a Will cannot revoke an earlier nomination. To revoke the earlier nomination, you have to use the prescribed form provided by the EPF Board.

ROCKWILLS PROFESSIONAL WILL-WRITERS

Q How professional are your Will-Writers?

A All our Professional Will-Writers are provided with a comprehensive training programme on Will Law covering the legal aspects of Will writing and supported by our team of in-house legal advisors. All Wills are professionally drafted and checked by our in-house legal advisors.

COMPLETING THE FINANCIAL PLANNING PICTURE

Q I am now a financial service provider. Is it necessary to add Will-writing to my range of services?

A It all depends on each financial planner. Based on the latest (2002) trend in the financial services industry where everyone are aiming to become a total financial planner, then Will-writing is necessary. This is because with Will-writing, you then become a complete financial planner, i.e. you can provide services wealth protection, wealth accumulation and finally wealth distribution through Will-writing.

Moreover, Will-writing has become the no. 1 service because writing a Will can open the door to the other financial services.

RE-WRITING YOUR WILL

Q Do I need to pay for minor changes in my Will?

A Yes. We will offer 20% discount for our existing customers if they were to rewrite their Will. Another alternative is to subscribe to our Premier Lifetime Custody where you will enjoy 70% discount for the first rewrite. For subsequent rewrites, you will enjoy 50% discount for unlimited number of times. In addition to these benefits, we also offer free Personal Accident Insurance of RM20,000 to our customer who subscribe to this service

until the age of 65.

RIGHT TO CHANGE MY WILL

Q Can I make changes to my Will as and when I like?

A One of the characteristics of a Will is that it can always be revoked before the testator dies. Section 2 of the Wills Act 1959 defines, in short, a Will is only a declaration and hence do allow for changes because the effect will only take place upon death. Whereas Section 12 and Section 14 of the Wills Act 1959 allows the Will to be revoked due to marriage or destruction with the intention to revoke or a later valid Will allow a testator keep changing his/her Will during his/her lifetime. In addition, if a non-Muslim professes the religion of Islam then the Will written will no longer be under the ambit of the Wills Act 1959.

WRITING A LEGALLY BINDING WILL

Q Can I write my own Will?

A If you have written yours, is it within the ambit of various laws, such as guardianship, family inheritance, Wills and Trust Act? Your Will may be invalid if it is improperly written and as a result may cause hardship to your family. You may save some money now but it will cost your family more to repair the damage later.

WILL IN CHINESE

Q Can I write my Will in Chinese?

A A Will can be written in any languages. However, where the Will is not in English a translation certified by a court interpreter or a translation verified by the affidavit of a person qualified to translate must be annexed to the application for grant of probate.

COPY OF WILL

Q Can probate be granted on a copy of a Will?

A Yes, provided it is proven that the original has been lost or accidentally destroyed.

ALTERATIONS TO WILL

Q Can I make alterations to my Will without writing a new Will?

A It is advisable to write a new Will if the alterations are substantial. If it is a minor alteration - a typing error, for example - you can alter your Will and sign beside the alteration in the presence of the same witnesses. After that, the witnesses will also be required to sign beside the alteration in order for it to be effective.

DO IT YOURSELF "WILL"

Q Can I buy a standard format Will or download them from the Internet?

A Yes, you can but there are some pitfalls. You may not be able to express your wishes clearly and ensure that it is legally effective. A professionally written Will will be able to cater to your specific needs. Saving some money now does not mean that the Will is valid and it may give your family and loved ones more heartache in future.

WRITING MY OWN WILL

Q Can I write my own Will or use a sample downloaded from the do it yourself section or follow a simple diskette on simple Will?

A Yes, you can if you are well versed with the Wills Act. Otherwise, if it is a basic sample, then the Will may not be truly reflective of your wishes. Moreover, if there are no proper professional guidance and review then certain clauses may not be written in the manner that could prevent a wrong interpretation. Hence it may end up with more hassles and would not fulfill your wishes.

Therefore it is still recommended that you seek the services of a Professional Will-writer so that your whole estate of thousands and millions can be totally protected.

Q: I have written a few Wills, which I have lost. Recently, I had another Will written. If any of my old Wills are recovered after I die, which will be the valid Will?
The court will recognise your latest Will as the valid one provided it was made in accordance with the requirements laid down by the Malaysian Law.

DISADVANTAGES OF WRITING A JOINT WILL

Q Is it advisable to write a Joint Will with my spouse so that I can save the Will-writing fee?

A Yes, you can but there are disadvantages in having a Joint Will (JW). Firstly, since it is the Will of two persons in one document, there is always a loss of confidentiality and privacy when the JW is used to apply Probate. While applying for Probate the JW will be a public document, which means it will be exposed to the public. If the other party values privacy and confidentiality this is not the way to go. Secondly, if the JW is lost, both parties need to rewrite their Wills. Finally, if one party wants to alter his/her Will in the JW, there may be a need to rewrite a new JW by both parties. This is inconvenient and can be time consuming. So, you are recommended to have individual Wills instead, which will ensure your confidentiality and privacy, not to mention convenience to you when you decide to rewrite. We strongly discourage you to have this type of Will written. There will be no Will-writing fee deduction if a JW is written and the custody fee is charged according to the rates of two testators, even though the JW is in one document.

PROFESSIONAL WILL CUSTODY

Q Why should I keep my Will with Rockwills?

A Writing a Will is only half the story. The other half is keeping the Will in a secure place. An unprotected Wills as good as having no Will. Most people would keep it in a bank safe deposit box. But it is not a good idea when it comes to a Will. Simply because when the account holders is no longer around, the deposit box and everything in it will be frozen. At Rockwills, we provide Professional custody service to our customer that can last a lifetime. For further details, you can contact our Professional Will-Writer.

SAFE KEEPING OF WILLS

Q Can I keep my Will in my Bank's safe deposit box?

A You can keep your Will in the safe but when a person passes away, all assets including safe deposit box will be frozen even if it is in joint names. Moreover, there is the problem of loss of privacy and confidentiality. This is because of the joint account holder will have access to the Will.

APPOINTMENT OF TRUST CORPORATION

Q What will happen if I do not know who to appoint as my executor and trustee?

A You can always appoint a Trust Corporation to solve the problem. If your children are too young to be appointed as trustee and executor, you can insert a provision that if they are of age, then they will be appointed; failing which a Trust Corporation can be appointed instead. The benefits of appointing a Trust Corporation is they are impartial, professional and have perpetual existence.

WILL TO CHARITY ORGANISATIONS

Q What happen if I have no beneficiaries to will my assets?

A You may want to will them to any charity organisation or even to an old folk's home of your choice.

SUPERSTITION

Q I am a very superstitious person, will writing a Will brings any bad luck to me?

A Being superstitious will only cause difficulties for your family. Writing a Will have nothing to do with death. It is about ensuring the distribution of your wealth to your loved ones as there are many benefits of having a Will.

In Hong Kong, which is one of the most superstitious society, many people have also written their Wills which they termed as 'a peace book' to give the person a peace of mind. This is a planning tool where you expressed your love and care to the family by ensuring everything is done according to your wishes. Hence with less hassles and a proper back up plan, you will definitely enjoy peace of mind.

STAMP OR SEAL

Q Does a Will need to be stamped or sealed?

A There is no legal requirement for a Will to be stamped. Sealing a Will only serves the purpose of confidentiality.

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