Last Will and Testament

WHAT IS A WILL?

A Will is a declaration by a testator (the person making the Will), in a form prescribed by the law, of matters [directions] which he or she wishes to take effect upon his or her death. In short, it is a person's last instructions.

CHARACTERISTICS OF A WILL?

Scope not confined to Disposition of Property

1. Appoint executors, trustees and guardians.
2. Revoke earlier Wills.
3. Directions for burial or donation of organs or donation to choice or favourite charities.

Operate only as a Declaration of Intention

1. Does not interfere with power of disposition during lifetime.
2. Liabilities > Assets

Authority of the executor to sell assets.

Prescribed Form

Formalities to be followed in writing a Will (Section 5, Wills Act 1959, Malaysia)
1. A Will must be in writing (unless it is a privileged Will). It can be handwritten, typewritten/printed in any languages.
2. The testator must sign or affix his mark (e.g. thumbprint) at the end of the Will or so placed that it shall appear that it was intended to give effect to the writing as a Will.
3. A Will has to be attested by at least two witnesses present at the time when the testator or the person signing on his behalf sign or the signature can be acknowledged by the testator as the signature to his Will to the two witnesses in their presence. Then each of the witnesses shall sign in the presence of the testator.

Takes Effect upon Death

1. Until death, the beneficiary and executors have no interest whatsoever in the testator's estate.
2. A Will is capable of dealing with property acquired after the date it was made.

BASIC REQUIREMENTS IN A WILL

VALIDITY OF A WILL
A Will is only valid if at the time when it was made the testator:
1. had attained the age of 18 (Section 4 Wills Act 1959 Malaysia).
2. is of sound mind (Section 3 Wills Act 1959 Malaysia).
3. complied with the formal requirements laid down in the Wills Act 1959, Malaysia (Section 5)

PROPERTIES THAT CANNOT BE DEALT WITHIN A WILL

Insurance policies effected under Section 23, Civil Law Act, 1956, Malaysia.

Employee Provident Fund where nominees have been named.

Properties held under joint ownership, e.g. joint bank account where the mandate gives the right of survivorship.

Native properties, e.g.
Old jars - tajau, linggau, payongan
Brass jars - gurunsing

Gongs - tawak-tawak
Weapons - sword, kris or cannon
N.T. Land (if is a Harta Pusaka)
Buffaloes
and other ancestral properties (Harta Pusaka). A native can still write a Will provided it is not contrary to native law and custom.

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