1. I don’t want my husband to inherit a single cent from my estate but I was told that I should give him at least RM 1.00 under my Will to prevent him challenging my Will. Is this true?
    Any amount given to your husband will not prevent him challenging your Will. It is not necessary to give anything to your husband if you do not wish to. However, you should state a reason in your Will why you exclude him and state in your Will that you are aware of leaving nothing to your husband.
     
     
  2. If I have nominated my parents as the beneficiaries for my EPF account, can I subsequently will it away to my spouse? Can my Will revoke the nomination I made earlier?
    No, your beneficiary in your Will will not be able to revoke your earlier nomination made in EPF account. Under the EPF regulations, a Will cannot revoke an earlier nomination. To revoke the earlier nomination, you have to use the prescribed form provided by the EPF Board. However, if you have withdrawn the approval portion of your account to invest in unit trust, this portion can be willed away.
     
  1. Can I write a Will for someone when I am the beneficiary in my Will? Is there any conflict of interest?
    There is no restriction on writing a Will. However, if the Will is contested in the Court later, the Court may find suspicious circumstances exist and probate might not be granted unless suspicious is removed.
     
     
  2. Can a beneficiary or his/her spouse be a witness in a Will?
    No, a beneficiary or his/her spouse must not be a witness in a Will. If he/she does, then he/she will lose his/her share in the Will. However, this will not affect the validity of the Will.
     
     
  3. Who is an administrator?
    An administrator is a person appointed by all lawful beneficiaries to the estate of the deceased in case of intestacy to administer the estate of the deceased.
     
     
  4. Is it true that the consent from all the legal beneficiaries to the estate of the deceased in case of intestacy required before the administrator can be appointed?
    Yes, the consent from all members of the family is required. Any beneficiaries who are not applying to become the administrator will have to renounce his/her right to the appointed administrator.
     
  5. How many executors can be named in a Will?
    Under the law, there can be a minimum of one and a maximum of four executors. But if there are minor beneficiaries, at least two persons should be appointed.
     
     
  6. Who can write a Will?
    Any Malaysian had attained the age of 18 for Peninsular Malaysia and Sarawak. For Sabahan, the minimum age is 21.
     
     
  7. Can I appoint guardians for my children and make a prearrangement to pay my guardian in the Will?
    Yes, you can appoint guardians for your young children in a Will. As for payment to the guardian, special instruction can be drafted in your Will to pay them periodic payments only if they act.
     
     
  8. I understand that guarantors are required for the application of a Letter of Administrator (LA) if one passed on without a Will? Yes, the administrator must get two guarantors to sign the administration bond before LA can be extracted and the guarantors must have assets within the jurisdiction equivalent to the gross value of the deceased’s estate.
     
     
  9. I was advised that I should not appoint the same person in my Will as my Trustee and Guardian, what is the reason for this? The role of your Trustee is to hold on trust your moneys and other assets for your minor children while your Guardian is to take care of the welfare of your minor children. Thus, it is always wise to have different persons to ensure there is counter-checking.
     
     
  10. Under what circumstance a testator need to appoint a Guardian and Trustees?
    When there is a minor beneficiary named in the Will, the Trustees will hold on trust till beneficiary has attained the age of 21 and a Guardian is to take care of the minor children if both parents predeceased.
     
     
  11. Do I have control of my assets when I write my Will?
    Certainly, a Will will only take effect upon your death.
     
     
  12. I do not want to list down my assets in my Will. Can I write a general Will?
    Yes, you can. However, it is advisable to keep good records of your assets, as you do not wish your family members to ‘treasure hunt’ your assets once you are no longer with them.
     

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  13. Can I donate a specific amount to charity?
    Yes, you can mention the specific amount for donation. However, you need to name the charity that you want to benefit in your Will.
     
     
  14. Can I state my funeral arrangement in my Will?
    Yes, you can. In a Will, you can mention your wishes and the appointed the Executor will have to carry out your wishes.
     
     
  15. In my Will, can I create a ‘Trust Fund’ to pay the maintenance expenses of my elderly parents and my retarded nephew that I loved very mush?
    Yes, you can. It can be known as ‘Maintenance Trust” for your elderly parent and your nephew. ‘Trust Fund’ can also be created for payments of education expenses, medical expenses, monthly donation etc.
     
     
  16. If I write my Will today and pass on tomorrow, is my Will valid?
    Yes, it is valid as long as the Will is written in accordance with the Will Act 1959, signed and witnessed by two independent witnesses.

     
  17. What is a residuary clause?
    It is one of the vital clauses in a Will. Any asset which the testator forgot to will away will automatically fall under the residuary clause. Thus, with a residuary clause, there is no partial intestacy of a Will.
     
     
  18. I have written a Will recently. I am going to purchase some new assets next month, do I need to rewrite again? Will there be anyone receive these assets when I passed on without writing a new Will to include these new assets?
    No, the new assets will fall under the residuary clause and distribute accordingly. However, if you do not want the beneficiaries 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.
     
     
  19. What happen if both the witnesses cannot be located or already passed away when the Executor wanted to apply for the Grant of Probate?
    The Executor need to file an affidavit saying that the witnesses can not be located or already passed away and the Court might need an affidavit from a person who can verify the signature of the testator.
     
     
  20. Is it true that the testator must state the reasons as to why he/she is not providing any gift to a particular family of his/her family?
    Yes, it is advisable to state the reasons why provisions have not been made for a particular family member.
     
     
  21. If I have already set up a Trust Account, should I write my Will and vice versa?
    A Will is a necessary document to facilitate smooth and efficient distribution of your estates to intended beneficiaries. A Trust on the hand is an estate planning arrangement to prevent the necessary assets from being frozen or falling into the distribution process under the Will or the Distribution Act 1958. They are complementary instruments and you may need both, depending on your specific circumstances.
     
     
  22. Can I keep my Will written by Rockwills franchisee in my safe deposit box in my bank?
    It is not advisable because the safe deposit box will be frozen when you passed on. Thus, your family members may not be able to retrieve it for application of Grant of Probate.
     
     
  23. It is stated in my Will that “I give my wife X RM10, 000”. After a divorce, she is no longer my wife and the description of my relationship with her is no longer valid. If I do not rewrite my Will, will she still able to inherit RM10, 000 from me?
    The former wife will still be able to inherit the RM10, 000.
     
     
  24. Can the testator will away a joint bank account?
    Joint bank accounts may not be able to will away. There are some uncertainties surrounding the issue of ‘survivorship clause’ in joint bank accounts. Firstly, Mr. G. Raman is of the opinion that if the mandate is given to the bank when opening the account says that upon death of the one of the account holder, the surviving account holder will be entitled to the moneys standing to his/her credit in that account. However this is arguable.

    In light of the uncertainties surrounding this issue, firstly it is not advisable to will away a joint account to a third party other than the other joint account holder even though the other joint account holder has contributed nothing to the account, unless there is an understanding and trust between the joint account holders to respect the wish of the testator to give the joint account to a third party.

    Secondly, if a joint account has a survivorship clause it does not automatically benefit the surviving joint account holder then it may be advisable to will it to the other joint account holder if it is intention to benefit him/her. Otherwise the moneys will form part of the residuary estate. Even if G. Raman is right i.e. the moneys will go to the survivor, there is no harm in stating the obvious in the Will.

    Finally, please note that there is a tendency in the practice of some banks to freeze a joint account even if there is a survivorship clause. This is based on the internal practice and policies of the bank rather than required by the law. However, most banks in Malaysia do not have the ‘survivorship clause’ in their agreements.
     
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