Writing a Will
Wills Act 1959 (Revised 1988) hereinafter, “the Act”, defines “will” as a declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death and includes a testament a codicil and an appointment by will or by writing in the nature of a will in exercise of a power and also a disposition by will or testament of the guardianship custody and tuition of any child.
The Act specifically provides that the said Act shall not apply to wills of persons professing the religion of Islam whose testamentary powers shall remain unaffected by anything in the Act.
Ordinarily a will must be in writing. The testator must sign on his Will to validate the document. And if the testator is for some reason unable or incapable of signing it could be signed by someone in his presence and by his direction [S.5(1) of the Act]. The signature of the testator must be acknowledged in the presence of two witnesses, who must be present together at the same time and must attest and subscribe the will together in the presence of the testator. There is no special requirement for any form of an attestation, clause save to confirm that the witnesses were together with the testator when he signed the will.
In some circumstances the whole will can be invalidated. However, if the beneficiary is a witness so much of the will that give the beneficiary rights and properties is excluded. The residue of the will remains valid. Section 8 of the Act reads that if any person who attests the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. Under Section 9 fits to an attesting witness or the spouse of an attesting witness is void. Section 11 provides that an executor is not an incompetent witness.
Impact
If no Will was done orally or documental, the estate will be distributed based on the following Act:
The Distribution Act 1958 (revised 1997) applies to an estate of an intestate only. And according to Halsbury Laws of Malaysia “the three new distinct features introduced by the amendment are”:
1. If an intestate dies leaving a spouse and no issue and no parent or parents, the surviving spouse takes the whole residuary estate absolutely. If the intestate dies leaving no issue but a spouse and a parent or parents, the surviving spouse is entitled to one-half of the estate and the parent or parents the remaining one-half.
2. If an intestate dies leaving a spouse and issue but no parent or parents, the surviving spouse takes one-third of the estate and the issue the remaining two-thirds. If the trusts in favour of the issue of the intestate fail because no child or other issue attains an absolutely vested interest, the residuary estate devolves as if the intestate had died without leaving issue.
3. Where an intestate dies leaving issue but no surviving spouse and no parent or parents, the surviving issue are entitled to the whole of the residuary estate upon the statutory trust. Where the intestate dies leaving a spouse, issue and parent or parents, the surviving spouse is entitled to one-quarter, the parent or parents one quarter while the issue the remaining one-half of the residuary estate. If the intestate dies leaving no spouse but issue and a parent or parents, the surviving issues are entitled two-thirds of the estate and the parent or parents the remaining one-third.
What is a will?
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