FAQ of Drafting a Will

1.     How long is the validity of my Will and what if I decide to make a new Will?
Upon execution, your Will is valid until it is replaced by a new Will, revoked in writing or destroyed intentionally. You will make a declaration in your latest Will to revoke your earlier Will and any earlier testamentary dispositions made, so don’t be confused by having two Wills.

2.     Can I change, vary or modify the contents of my Will?
In any event that you wish to change, vary or modify the contents of your Will, you can either make a new Will for replacement, or to execute a codicil. A codicil is an official alteration to an earlier Will, and the formalities to execute a valid and enforceable codicil shall be the same as in executing a Will as discussed previously.

For more about the formalities, please visit: http://www.yeepartners.com.my/introduction-of-making-a-will/

3.     Why does a Will need to be witnessed?
In order to make a Will valid and enforceable, it is a legal requirement for the Will to be witnessed by two qualified witnesses. The main reason is simple because in any event that your Will is challenged in the future, your witnesses can stand out and testify that they witnessed you sign your own Will. Besides, they also witnessed the demonstration of your testamentary capacity.

4.     What is testamentary capacity?
Testamentary capacity is the legal terminology to describe a person’s legal and mental ability to make a Will. Generally, the law determines that if a person can achieve the following, he has testamentary capacity:
– Understands and recollects the extent of his property;
– Understands that he is giving his property to one or more objects of his regards;
– Understands the nature and extent of the claims upon him by those who are benefitting from his Will;
– Does not suffer from any disorder of the mind or insane delusions.

If there is doubt on the above, we advise to request for a medical practitioner to act as one of the witnesses in order to prove the requirement of testamentary capacity.

5.     Who can witness my Will?
A Will can be witnessed and signed by anyone over the age of 18, such as neighbour, friend, colleague or your lawyer. Of course, your appointed executor can also witness your Will, as long as he is NOT a beneficiary from your Will.

6.     Who cannot witness my Will?
Generally, your Will cannot be witnessed by a person who stands to benefit from it. This refers to:
– Any beneficiary(ies);
– The spouse of any beneficiaries; and
– A blind (they need to be able to see you sign your Will)

7.     Does my Will need to be stamped?
No, your Will does not need to be stamped to be valid and enforceable. (even though you may have heard that a document must be stamped so that it could be brought to court.)

8.     Where should I keep my Will?
You should keep your original Will in a safe place. However, it is not advised to keep your Will in any safety box which is not accessible by anyone else except you.

9.     Should I inform my family that I have made a Will and where I keep my Will?
Yes, you should inform your family the fact that you have made a Will and the place you keep your Will. Even you decide not to disclose to your family, at least inform your executor so that he knows where to locate your Will after your death.

10.   Who can be my executor?
It is entirely up to your wish to appoint between 1-4 person(s) aged 18 or above as your executor(s).

Remember, the executor is the person who executes your Will, wishes and arrangements after your death, he should be the person you trust the most. For example, your children, any beneficiary, friend, relative, trust company and lawyer.

11.   What is the role of my executor?
Your executor should ensure that your wishes in your Will are fulfilled accordingly. The general roles of an executor include:

– Obtain an extract of Death Certificate from the Registrar of Births and Deaths (JPN);
– Present your original Will together with the list of assets and liabilities;
– Proceed to apply for grant of probate;
– Attend the hearing in court;
– Once probate is extracted, collect all the assets to settle all debt and liabilities;
– Distribute your assets according to your Will.

12.   What can my executor do if my original Will is missing after my death?
Generally, the court will require original Will to be submitted before allowing application for grant of probate. However, if it can be proven that the original Will was lost or destroyed without your intention to revoke the Will, a copy of the Will can be accepted.

Note:  Usually Messrs. Yee & Partners will be keeping a same Will for the Testator/Testatrix who drafted the Will with us.

13.   What happens if the beneficiary dies before the Will maker?
As a general rule, such gift shall lapse or void by the reason of the death of the beneficiary before the Will maker and the lapsed gift shall be dealt with according to the residuary clause in the Will.

However, the exception here is that such gift shall not lapse if the beneficiary being the Will maker’s child or descendants, dies leaving issues.

14.   Can I deal with my insurance policies or Employees Provident Fund (EPF) money in my Will?
Generally, your Will cannot override nominations registered under your insurance policy and EPF and therefore the benefits will be paid according to your nominations.

However, when you have no nominations in EPF’s record, you may include your EPF contributions in your Will.

15.   Is my Will enforceable in Malaysia, if it is made and proved overseas?
Yes, your executor may apply to the court to re-seal the grant of probate in Malaysia.

16.   Can I include foreign property in my Will?
Yes, you can include with both assets within Malaysia and foreign countries. Same as mentioned above, your executor may need to apply to the court to re-seal the grant of probate in a court of the foreign jurisdiction in order to enforce your will in foreign country.

17.   Does marriage or divorce affect my Will?
Upon a marriage or remarriage, any existing Will is automatically revoked and becomes no longer valid and enforceable, unless you make it clear and express in a ‘contemplation of marriage’ clause that you intend your new Will to take effect after you have married.

However, a Will is not void or invalid upon a divorce. So it is best to make a new Will immediately after your divorce, if you do not intend to leave anything to your spouse.

18.   What happens if I have overlooked some assets or acquired assets after making my Will?
Your Will should contain a residuary clause which deals with the distribution of all your assets which are not specifically covered in your Will. Such assets include assets acquired in the future or by inheritance.

19.   How can my Will be challenged?
In the event that your Will is not executed according to the law, your Will can be challenged on the following grounds:-
– the signature is forged;
– the contents have been altered;
– the execution of the Will was not properly witnessed;
– the Will maker is lacked of testamentary capacity at the time he made the Will;
– the Will maker was under undue influence at the time he made the Will;
– ambiguity or apparent omissions in the Will;
– the Will was procured by fraud.

Therefore, we advise you not to poorly execute your own Will to avoid any potential challenge in the future.

For other information, please click and visit: www.yeepartners.com.my

The information published in this article is provided for general informational purposes only and does not constitute any legal advice from the Yee & Partners. Feel free to seek legal advice from our professional lawyers.