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- Can the witnesses and the testator
sign on the Will at different time?
No, both the witnesses and the testator must sign the Will at the same time. The function of the witnesses is to confirm and verify the state of mind of the testator as being sound mind.
- Can Probate be granted on a copy of a Will?
Yes, provided it is proved that the original Will has been lost or accidentally destroyed.
- What happen if both witnesses to the Will have died or cannot be located when the Will is submitted
to the Court for Probate?
The Court will require an affidavit from the person who was present when the Will was executed. If there is no such person, it will require an affidavit from a person who can verify the authenticity of the testator’s signature.
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Can I make alterations to my Will without writing a new Will?
It is advisable to write a new Will if the alterations are substantial. If it is a minor alteration – a typing error,
for example, you can alter your Will and sign beside the alteration in the presence of the same witnesses. After
that, the witnesses will also be required to sign beside the alteration in order for it to be effective.
- Can I produce my Will on videotapeor VCD instead of writing everything down?
No, under section 5 of the Will Act 1959, all Will must be written in a prescribed form. However, a member of the armed forces engaged in actual military service or a mariner at sea can make what is known as a privileged Will. This type of Will does not have to be in writing. As such, video-typing may be acceptable.
- Can I write my Will in Chinese?
A will can be written in any languages. However, where the Will is not in English, a translation certified by a court interpreter or a translation verified by the affidavit of a person qualified to translate must be annexed to the application for Grant of Probate.
- Does a Will need to be stamped and sealed?
A Will does not need to be stamped to be valid. Sealing a Will only serves the purpose of confidentiality.
- Who is testator?
Testator is a person who makes a Will.
- How long it takes to apply a Grant of Probate?
Normally shorter than LA application, it varies from a minimum of three months to a year, depending on the size of the estate.
- I have written a few Wills, which I have lost. Recently I had another Will written. If any of my old
Wills are recovered after I die, which will be the valid Will?
The latest one.
- Can I sell away my assets mentioned in my Will?
Yes, you can, once you have sold off any of the assets mentioned in the Will, the respective beneficiary will receive nothing as on the date of your death, there is no such asset.
- I will be getting married in a few months’ time. I understand that if I write my Will now, my
marriage will revoke it. What do I do in the meantime?
You can write a Will now, but put it a clause stating that your ‘contemplation of marriage’ will not revoke your Will. The name of the person whom you are marrying must also be stated in the Will.
- I have written a Will five years ago. Since last month, I have become a Muslim, is my Will still
valid?
No, once a person professes Islam, the distribution of his/her estate will be governed by Syariah Law.
- What are the advantages of having a Will written?
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Please
do not let this happen to your family! Write a Will to ensure this
will not happen! |
- You provide for your beneficiaries in the way you choose rather than letting the Law decides for you.
- Expedite legal process.
- No sureties required.
- You may appoint guardian of your choice for your infant children.
- You exercise the right to appoint people of your choice to administer your estate and to carry out your wishes so as to safe guard the interest of those you love and care.
- It costs less in term of legal fees and time to apply for Grant of Probate than letter of Administration.
- What are the duties of the Trustee in a Will?
- Continue to administer the estate where the properties cannot be distributed, e.g., for a minor.
- Manage the estate according to the instructions and powers given by Will and the Trustee Act a949.
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After signing the Will, the testator divorces his wife whom is a beneficiary in the Will, will she be able to receive the gift mentioned in the Will?
Yes, she will. Divorce, unlike marriage, does not revoke a Will. Therefore, if you have divorced or separated, you should consider rewriting your Will.
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Can I will away my foreign assets?
Yes, only the movable assets in foreign country. The immovable assets will follow the law of the country domicile.
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What is domicile and what is lex situs?
Domicile is the country in which a person is or is presumed to be permanently resident and lex situs means the law of the place where the property is situated. It is the general rule that for movables the law of the testator’s domicile applies, whereas for immovable, it is the lex situs that applies.
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Under what situation the Court will not require an administration bond (surety) when applying for letter administration?
The administration bond can be waived when
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the gross value of the estate does not exceed RM 50,000.00.
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the administrator is a trust corporation.
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the administrator is the sole beneficiary.
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the Court waiver – full or partial. This is at the discretion of the Court.
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I am going to inherit some assets from my father when he passed on in 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. This because one of the characteristics of a Will is that it only takes effect upon death. As such, even though the assets do not belong to you at the time of writing your Will, they may belong to you at the time of your death, in which case you can pass them on to your beneficiaries.
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I have a house under joint name with my husband. Can I will my share of the house away to whoever I wish?
Yes, you can will away your share of the house.
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What are the assets that cannot be dealt with under the Will?
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Insurance policies.
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Employees Provident Fund (EPF).
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At what age will my children inherit my property?
A person is legally capable of holding property upon attaining the age of 18. If you want your children to inherit
later then it should be expressly stated in your Will the age which they should inherit.
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I was working in USA for five years, and had written a Will there. Now I am back in Kuala Lumpur. Is my Will recognized by the Court in Malaysia?
It will be recognized by the Courts here if the Will was made in accordance with the manner required by the Wills Act 1959 in Malaysia, or the laws of the USA pertaining to the Wills.
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Can one of my beneficiaries be the executor, trustee and guardian in my Will?
Yes, you can. However, for check and balance, it is always advisable to appoint a guardian who does not perform the duty of a trustee.
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I am an orphan. My mother never came back after leaving me with my nanny, who has raised me since then. My nanny is rather old now and dependent on me. When I am gone, will she benefit from my assets?
No, she would not. You need to write a Will, named your nanny as a beneficiary. If you are not married and do not have next of kin, your assets will go to the go the government.
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I want everything I own to my children but I plan to have one or two more children in the near future, does it mean I have to rewrite my Will every time I have a new child?
No. You can include the clause en ventre sa mere which means future children as well.
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I am an illegitimate child and my father, who died recently, was an orphan. He did not leave a Will. Am I able to claim from his estate as I am his only child? My mother is married to someone else and lives in another country.
According to the law, you will not be entitled to claim from your father's estate as you are illegitimate, but you can claim from your natural mother’s estate provided she does not have any other legitimate children.
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Any queries on Will writing, contact alvinleow@rockwills2u.com.my
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