Will and the benefits of having a Will
Will
What is a Will? Basically a Will is a written document signed by the person making the Will (“Testator”) leaving the estate of the Testator to the beneficiaries named in the Will.
The Testator will usually name a person as the executor in his Will who is vested with the responsibility to administer the estate of the Testator in accordance with the terms of the Will.
The Testator will also usually specify the portions or percentage of his estate to be given to the beneficiaries. At times the Testator may also make arrangement for funeral arrangement in the Will.
The legislation governing a Will in Malaysia is the Wills Act 1959. There are few basic provision worth to take note off as it is capable of affecting the validity of a Will and they are as follows:
1. Section 5 Wills Act 1959 where it was provided that the a Will must be in writing and signed by the Testator in the presence of two or more witnesses;
2. Section 4 Wills Act 1959 where it was provided that will of any infant (below the age of majority of 18) is invalid; and
3. Section 9 Wills Act 1959 where it was provided that gift by the Testator to the attesting witness or to the spouse of such witness in a Will is void without affecting the ability of the witness to attest to the due execution of the Will.
Having observed the above provisions of the Wills Act 1959 it appears that anyone can draft a Will as long as the basic provision of the Wills Act 1959 is complied with.
However, the writer is of the view that it will always be better to have a Will prepared or drafted by a lawyer because a lawyer is a professional who is qualified to give legal advise on the provisions of the Wills Act 1959.
The benefits of having a Will
There are various benefits available only to a person died leaving a valid Will (“Testate Succession”) as opposed to someone who have died without leaving a valid Will (“Intestate Succession”) and few of the important benefits are illustrated as follow:
Testate Succession:
1. The Testator’s estate vests in the executor upon the Testator’s death thereby enabling the executor to handle the Testator’s affairs subject to the production of the grant of Probate if and when required
2. The Testator has the absolute freedom to choose his beneficiaries and their entitlement.
3. There is no requirement for the executor to provide sureties as security for the administration of the estate because the executor was chosen by the Testator himself.
4. Minimize or reduce the possibility of conflict among the beneficiaries because everything has been spelled out clearly from naming the executor to beneficiaries entitlement.
5. Lower legal cost to obtain the grant of probate from the High Court.
Intestate Succession
1. The Testator’s estate do not vest in the administrator until the Letter of Administrator have been extracted.
2. The Testator do not have such rights freedom to choose his beneficiaries and their shares. Succession to the estate is determined by the provision of the laws on intestate succession which is the Distribution Act 1958
3. Sureties is required as securities for the administration of the estate.
4.Leave room for possible conflict among the beneficiaries.
5. The legal cost to obtain the grant of Letter of Administration from the High Court is higher than the grant of probate.
Having read the above it can be safely concluded that it is always better to have a Will and it highly recommended to have a Will prepared by a lawyer as opposed to drafting one by yourself.