FAQ about WILL (2024)

Q1Who can be the witness for my Will?
No beneficiary or thespouse ofthebeneficiary should be the witness to a Will. And it isprudent to get someone who is mature, literate, not blind and above 18 years old to be the witnesses.

Q2What happen to the Will, ifa beneficiary or his/her spouse is appointedas a witness in a Will?
The beneficiary or his/her spouse appointed as the witness will lose his/her entitlement in the Will. However, this will notaffect the validity of the Will.

Q3Can the two witnesses and the testator sign on the Will at different times?
No, boththe witnesses must be present at the same time when the Testator signs theWill and then each of the witnesses shall sign in thepresenceofthe Testator. Thefunctionofthewitnesses is to acknowledge the signature of the Testator and verify that the testator is of sound mind.

Q4Domywitnessesneedtoreadorknowthecontentsof my Will before they sign as my witnesses in my Will?
No, they neednotreadyourWill orknow the contents of your Will. They merely confirm that you are of sound mind and you sign the Will in their presence.

Q5Do my witnesses need to appear in Court when my appointed Executor applies for the Grant of Probate?
No, They need not appear in Court. However, if there is a contest on the validity of the Will, the Court might need the witnesses toappear inCourttoprovethatthetestator was of sound mind and the Will was duly executed by the Testator.

Q6Since I am free to choose my own beneficiaries if I were to make a Will, Can Iexclude some of my immediatefamily member entirely from benefiting under my estate?
Yes, youmay but it isimportant for you to state a reason inyour Will if youdecides to excludeyour spouseora particular child entirely from your estate.

This is to prevent the Will from being challenged on the ground that the Testator was not of sound mind when executing the Will.

Q7Can I amend on my Will after I have signed it?
Yes, whenever alteration is made on your Will, you and the same two witnesses must sign next to the alteration.However, it is advisable to write anewWillifthealterationissubstantial in order to prevent difficulty in proving the Will in court later on.

Q8I have a house under joint name with my husband. Can I will my half share in my house away to whoever I wish?
Yes, you can. The house will be held jointly between your beneficiary and your husband should you pass on one day.

Q9Can I will away my foreign assets?
Yes,only themovableassets in a foreigncountry. The immovable assets will follow the law of the country where the property is situated and it is advisable to makeanother Willaccording to the law of that country in dealing with the immovable property.

Q10Is it true that a testator’s marriage will automatically revoke a Will written prior to the marriage?
Yes, it is.

Q11I will be getting married in a few months’ time. I understand that if I write my Will now, my marriage will revoke it? What shall I do in the meantime?
You canstateexpresslyinyourWill that your marriage to theparticular person shall not revoke your Will. The name of the person you are getting married to must be stated. Such clause is known as "Contemplation of Marriage Clause".

Q12After signing theWill, if thetestatordivorceshiswife who is a beneficiary in the Will, will she be able to receive the gift mentioned in the Will?
Yes, shewill beable to. A divorce does notrender aWill null and void.

Q13I am going to inherit some assets from my father when he passes on in the future. Can I specify them in my Will even though I do not own the assets at the point when I write my Will?
Yes, you can.

Q14CanIproducemyWillonvideotape orVCDinsteadofwriting everything down?
No. Under Section 5 of the Will Act 1958, all wills must be written in a prescribed form.

Q15Can I sell my assets mentioned in my Will after I signed it?
Yes, you can. A Testator is free to deal with his assets without having to answer to the beneficiariesorthe executor(s). TheWillwhich cannot be fulfilled due to unavailability or insufficient assets becomes a mere declaration of intention of the Testator.

Q16What happen to the estate of a person if he/she dies?
His/her estatewill be frozen.The family members of his/her require acourt order called"Grantof Probate"(GP)or"Letterof Administration (LA) to unlock his/her frozen estate.

Q17In what situation do we apply for a GP or LA?
WhenapersondiesleavingaWill,theexecutorappointedin his/her will apply for a GP. However, when he/she dies without a Will, the immediate family member have to apply for a LA.

Q18What is a Letter of Administration (LA)?
Anauthority given under the seal of the Court for the administration of the estate of a person who has died without leaving a Will.

Q19What is a Grant of Probate (GP)?
It is the order issued by the High Court which validates theauthority ofthe Executor to administer the deceased's estate according to the Will.

Q20Who can be an executor or trustee?
Anaturalperson above the ageof21oraTrust company.An executor ortrusteemust besomeone the Testator/Settlortrust to be able to manage his/her estate and fund for the benefitofhis/her beneficiaries even in the his/her permanent absence.

Q21How many executors I can appoint in my Will?
You can appoint up to 4 executors to act together at any one time in the Will.You can appoint them either jointly or as substitute to eachother. Oneexecutor is sufficient for the applicationof Probate.It isrecommended that two (2)jointexecutors be appointed whenever there are minor beneficiaries in the Will.

Q22Under what circ*mstances does a testator need to appoint aGuardian and Trustees?
WhenthereisaminorbeneficiarynamedintheWill.Normally, the Trustees will hold on trust for the minor till he/she has attained the age of 21 years old or ageofinheritanceorconditions being fulfilled as provided in the"Testamentary Trust" is created in the Will.

A guardian is needed to take care of the welfare of the minor children if both parents have passed away.

Q23What are the duties of Trustees?
1) Continue to administer the estate when the propertiescannotbe distributed, e.g. for a minor or until the trust period ends.
2) Manage the estate according to the instructions and powers given by the Will and according to the Trustee Act.
3) The appointed trustees cannot benefit by virtue of their office. All profits must be accounted for.

Q24Can I appoint the sameperson asmy Trustee andGuardian in my Will ?
The role of your Trustee is to holdon trustyourmoneyand other assets for your children who are minor while your Guardian is to take care of the welfare ofyourchildren.Thus,itis alwayswiseto appointdifferentpeople to ensure there ischeck and balance, especially for the money left behind by you for your children.

Q25What are the advantages of having a Will written?
1) You provide for your beneficiaries in the way you choose rather than letting the Law decides for you.
2) Expedite the legal process.
3) No guarantors (sureties) required by the High Court.
4) You may appoint a guardian of your choice for your children below 21 years old.
5) Youexercisethe right toappointpeople ofyourchoice to administer yourestate andto carryout yourwishessoas to safeguard the interests of those you love and care for.
6) It costs less to apply for a GP than a LA.

Q26Who is an administrator? Who is qualified to be an administrator?
An administrator is a person appointed by all the legal beneficiaries to theestate of adeceasedwho haspassed onwithoutaWillto administer the estate of the deceased.

Alllegalbeneficiariesofthedeceasedarequalifiedtobean administrator.

Q27I understand thatthe High Court requires two guarantors when the deceased’sfamilymemberappliesforaLAif he/she passes on without a Will?
Yes, two guarantors (sureties) are required by the High Court by way of bond equivalent to the gross value of the deceased’s assets.

Q28Is it true the consents from all the legal beneficiaries to the estate of a deceased who passed on without a Will are required before the administrator can be appointed?
Yes, the consentsfrom all membersof the family are required. Any beneficiary who is not applying to become the administrator will have to renounce his/her right to be appointed administrator.

Q29Under what situations will the Court not require administration bond guarantors (sureties) when applying for a LA?
1) The estate does not exceed RM50,000.00.
2) A trust corporation is being appointed as the administrator.
3) The administrator is the sole beneficiary.
4) A Court waiver – full or partial. This is at the discretion of the Court.

Q30How long does it take to apply for a Grant of Probate (GP) or a Letter of Administration (LA)?
A GP application normally takes a shorter time than a LA application. Normally a GP can be extracted within three months to a year, while a LA may takes from 2 to 5 years.

Q31Is it true that it cost less in term of legal fees to apply for a Grant of Probate(GP) than a Letter of Administration (LA)?
Yes, it is.

Q32What are the essential clauses in a Will?
1) Opening clause
2) Revocation clause
3) Appointment of executors clause
4) Residuary clause
5) Attestation clause

Q33What is a residuary clause?
It is one of the vital clauses in a Will. Anyasset which the testator did notspecifically will awaywillautomaticallyfall under theresiduary clause. Hemay haveforgottenaboutthose assets or thoseassets wereacquiredafterwritinghis Will. Thus, with aresiduary clause,there is no partial intestacy of a Will.

Q34What happens if my Will does not have a clause on the residuary estate?
Partial intestacy will happen.Whatever not expressly will away by the Testator in his/her Will will be distributed according to the Distribution Act (as amended in 1997) 1958.

Q35What is an accrual clause in a Will?
In a Will, an accrual clause isonethatmentionsthesubstitute beneficiaryofa particularassetshouldanearliermentioned beneficiary pre-deceased the testator.

Q36What is the legal requirement to make a valid Will?
The Will must be in written form, executed by the Testator, attested by one witnesses present at thesametimewhen the Testator signs the will.AndtheTestatormustbe of soundmind and had attained the age of 18 at the time of making the will.

Q37What are the assets that cannot be dealt within a Will?
1) Insurance policies with nomination(s). A Will can provide a substitute beneficiary for the insurance policies with nomination.
2) Money in Kumpulan Wang Simpanan Pekerja (KWSP) account with nomination(s).

(When thereisnomination(s)forinsurancepoliciesandKWSP account, a Will can provide a substitute beneficiary for this policies or account).

3) Assets hold on trust by a trustee.

Q38What is an issue?
A person’s issue refers to his/her children, grandchildren and all lineal descendants.

Q39Under The Distribution Act 1958 (as amended in 1997), what is the distribution among the spouse, parents and issue of the deceased?

If there are surviving spouse, parents and issue, the distribution is :-
1) Spouse ¼,
2) Parents ¼ and
3) Issue in equal shares of the remaining ½.

If there are surviving spouse and parents only and no issue, the distribution is :-
1) Spouse ½ and
2) Parents remaining ½.

If there are surviving spouse and issue only and no parent, the distribution is :-
1) Spouse 1/3 and
2) Issue in equal shares of the remaining 2/3.

If there are surviving parents and issue only and no spouse, the distribution is :-
1) Parents 1/3 and
2) Issue in equal shares of the remaining 2/3.

Please note :- Issue: Includes children and the descendant of children.

Q40What happens if a person passes on leaving no spouse, children or parent?
The following person(s) are entitled in accordance to priority when an intestate dieswithoutleavingbehind a surviving spouse, children or parent:-

1. brothers and sisters
2. grandparents
3. Uncles and aunts
4. Great grandparents
5. Great uncles and aunts and
6. GOVERNMENT

Q41Under what circ*mstances can Amanah Raya Berhad (ARB) administertheestateofapersonwho dies intestate?
When the estate consists of immovables only of gross value of less than RM600,000.00.

Q42At what age can my children inherit my property?
A person is legally capable of holding property upon attaining the age of 18.

Q43Can I write my Will in Chinese?
A will can be written in any language. However, where the Will is not in English a translation certified by a courtinterpreter oratranslation verifiedby theaffidavit of apersonqualified to translate must be annexed to the application for Grant of Probate.

Q44I have been maintaining my 2 minor nieces since their parents passed awayinanaccident.If I am gone, willtheybenefitfrommy estate together with my children?
No,theywouldnot.Youneedto write aWill toprovideforthem expressly.

Q45I worked in USA for five years and had written a Will there. Now I back in Kuala Lumpur. Is my Will recognized by the Court in Malaysia?
Yes, iftheWillhas been executed either according to the formalities in USA or theformalities under the Malaysian Wills Act.

Q46Does a Will need to be stamped and sealed?
No, the law does not required a Will to be stamped. Sealing a Will only serves the purpose of preventing tempering and confidentiality.

Q47Can one of my beneficiaries be the executor, trustee and guardian in my Will?
Yes, he can. However, for check and balance purposes, it is always advisable to appoint a guardian who does not perform the duty of a trustee.

Q48I want to give everything I own to all my children in equal shares but I plan to have one or twomorechildren in the nearfuture.Does it mean I have to rewrite my Will every time I have a new child?
No. Ifyou intendforthemto benefit equally, justuse theterm ‘children’ which can include future children.

49Can a Grant of Probate (GP) be granted on a copy of a Will?
Yes, if it can be proven that the original copy is lost or destroyed. The Court normally requires the original copy.

Q50Can Iwritea Willforsomeone whenIamoneofthe beneficiaries in the Will? Is thereany conflict of interest?
ThereisnorestrictiononwritingaWill.However,iftheWillis contested in Court later and the Court finds suspicious circ*mstances exist, probate might not be granted unless the suspicionis removed.

Q51I have written a few Wills years ago which I have lost. Recently, I have written another one. If any of myoldWills arerecovered after Idie, which is the valid Will?
The latest one.

Q52If I have nominated my parents as the beneficiaries for the money in my KWSP account, can I subsequently will it away to my spouse? Can my Will revoke the nomination I made earlier?
No.TheWillwill not beable to revoke your earlier nomination in the KWSP account.

Q53Can I make pre-arrangements to pay my appointed guardian periodically for the work done by her in my Will?
Yes, you can.

Q54Can I donate a specific amount to charity?
Yes, you can mention the specific amount for donation. However, in your Will, you need to name the charity that you want to benefit.

Q55In my Will, can Icreatea‘Trust Fund’topay forthe maintenance expenses ofmy elderly parents andmy retarded nephew that I love very much?
Yes,youcan. Itisknown as‘Maintenance Trust Fund’ foryour elderly parents and your nephew.A trustfund can also be created forpaymentofeducationexpenses,medicalexpenses, monthly donations etc.

Q56Can I state my funeral arrangements in my Will?
Yes, you can. You can mention your wishes in your Will. However, it is advisable to let your family members know of your wishes as a Will may be read only many days after your death.

Q57Can I write a general Will? I do not want to list down my assets.
Yes, you can. Inthiscase, itisadvisabletokeep good records of yourassetsasyou donotwish yourfamilymembersto ‘treasure
hunt’ your assets when you are no longer with them.

Q58I have written a Will five years ago. Since last month, I have become a Muslim. Is my Will still valid?
No. Once a personprofessestheMuslimfaith,thedistribution of his/her estate will be governed by the Syariah Law.

Q59Can I will away a joint bank account?
To avoid complication, it is advisable to will it to the joint account holder only.

Q60Can I keep my Will written by a Rockwills Will-Writer in my safe deposit box in my bank?
Not advisable, as the safe deposit box will be frozen when you pass on. Thus, your family members may not be able to retrieve it for theapplication of Probate.

Q61What are the common testamentary trusts created in a Will?
Some of the common testamentary trusts in a Will are as follows:-
1) Education Trust for children
2) Maintenance Trust for elderly parents
3) Special Needs Trust for handicapped children/family members
4) Maintenance Trust for spouse
5) Charitable Trust on the education expenses for the poor

Q62I have written a Will recently. I am going to purchase some new assets nextmonth. DoIneed to rewriteagain?Willthere beanyone receivingtheseassetswhenIpasson without writing a new Will to include these new assets?
No,the newassetswill fallunder theresiduary clauseandbe distributed accordingly. However, if you donotwantthe beneficiary named in the residuary estate to benefit from these new assets, then you need to write a new Will and name your preferred beneficiary for the new assets acquired after the date of the Will.

Q63When shall I rewrite my Will?
Whenthecirc*mstances have beenchangedsinceyou lastwrote your Will, for example, change in status (new spouse, divorce); change of Executor and/or Guardian's status; change ofmindwithregardtothebeneficiaries(e.g.childrenreaching theageof21, different beneficiaries); new members to the family (newborn, adoption);substantialincrease in wealth (commencement of business or partnership, purchase of property, inheritance), it is betterto review and rewrite your Will.

Q64I have two wives. One is legally married, the other not, as Malaysia law does not allow polygamy. I have bought some insurance policies and named my second wife as the beneficiary. Do I need to mention this policy in my Will to prevent a contest?
Yes, despite the fact that she is a beneficiary she is merely an trustee for the money paid out from the insurance policies. Your legal wife and children have a right over the money she receives. To protect her, state in the Will that this money is for her.

Q65Can I will away the house that is registered under my company to my preferred beneficiary in my Will?
No, you cannot will the house away in your Will. This is because the company is a separate legal entity when it was incorporated. The house belong to the company and not you.

Q66Who has the right to challenge a Will?
Anyone who has an interest in the estate of the deceased. Under the Inheritance (Family Provision) Act 1971, certain categories of people have a right to apply for reasonable provision to be made for their maintenance if nothing or insufficient amount has been left to them under the Will. These people are :-

1) The Spouse of the deceased.
2) A daughter who has not been married or is incapable of maintaining herself due to some mental or physical disability.
3) A son who is incapable of maintaining himself due to some mental or physical disability.

Q67I have withdrawn certain amount from my KWSP account to invest in some unit trust funds. Can I will these unit trusts fund to my son if I have nominate my husband as the beneficiary for my KWSP account earlier?
Yes, it is because the unit trust investments form part of your estate, not part of your KWSP account. You can will these investments in a Will.

Q68If I will my house which is still under a mortgage loan to my son, will he has to settle the outstanding loan before inheriting the house?
Yes, he has to. Thus, it always advisable to purchase some life insurance for debt cancellation purpose.

Q69Is it true that a Will cannot revoke an insurance policy with a nomination?
Yes, a Will cannot revoke an insurance policy with a nomination made under Section 166 Insurance Act 1996.

Under Section 166 Insurance Act 1996, only the nomination of a spouse and/or children is allowed. However, the nomination of parent(s) as a beneficiary is allowed on condition that the policyholder is not married at the time of making such a nomination.

Any nomination other than these nominations under Section 166 Insurance Act 1996 (i.e spouse, children and parents) receives the money as a Trustee unless the benefit of the policy has been assigned to him/her.

Q70Can a bankrupt be an executor or trustee?
No. as the Court may use its discretion to disallow the appointment.

Q71Can I name a bankrupt as a beneficiary in my Will?
Not advisable, as the official assignee (OA) who has jurisdiction over all the bankrupt ‘s assets will have access to such gift.

Q72I have only a house to will away to my son. Can I write a simple Will myself just mentioning that I am giving my house to my son on my demise, signed by me and two witnesses? Is this simple Will valid?
If you write a simple Will without mentioning the appointment of executor/trustee, a residuary clause and other essential clauses, your Will might become partial intestacy. It is always advisable to get a professional Will-writer to draft your Will to ensure your executor faces less difficulty in executing the Will in the future.

FAQs for Foreigners

Q1Do I need to write a Will for Property I own in Malaysia?
If you are from Commonwealth countryand already have a Will, then you may not need to write a Will in Malaysia for your Malaysian property provided thatyourMalaysianpropertyis mentioned in the Will. However, if you can write a separate Will in Malaysia in respect of your Malaysian Property, the process ofdistributionofthe Property willbe much faster and easier for your executor in the future.

Q2What if I am not from a Commonwealth country?
We suggest that you have a Will written inMalaysia to cater for all of your assets in Malaysia.

Q3If Ihad written a Will in Singapore to cater formy assets inSingapore earlier, wouldmy Will written in Malaysia revoke my Singapore Will?
No. We draft a complement Will to ensure it caters for assets in Malaysia only and itwillnot affect your other Will.

Q4.Is there any estate duty in Malaysia?
No.

Q5I am the executor for a Will and the deceased has assets in Malaysia.What should I do?
You need to appoint a lawyer for assisting you to apply to court for the Grant of Probate. We can refer you to lawyers who specialized in probate matter if you do not know any.