1. I bought a house recently and it is charged to the bank. If I give the house to my son, would my son have to settle the housing loan with the bank before he inherits the house?
    Yes, he has to. Thus, it is advisable to purchase a Mortgage Reducing Term Assurance (MRTA) to pay for any outstanding loan should you passed on suddenly. Alternatively, it can be mentioned in the Will that the loan is to be paid from the testator’s estate.
     
     
  2. I am single and both my parents have passes away. I have some property which I do not wish to will to any of my brothers and sisters due to some personal reasons. Do I need to state the reasons for not providing anything to them? Can I will my estate to anyone I like?
    Yes, you can. You do not need to state the reason in your Will.
     
     
  3. I have withdrawn RM50, 000.00 from my EPF account to invest in some unit trust fund. If I passed on, will my nominee for my moneys in the EPF account able to receive my unit trust investment as well?
    No, your nominee will not. These unit trust investment form part of your estate not part of your EPF account. You can will this investment in your Will.
     
  1. I have bought a life insurance policy and nominated my wife as beneficiary. Do I still need to mention it in my Will?
    No. Under Section 166 of the Insurance Act 1996, if the insured has nominated the spouse and/or children as beneficiary or beneficiaries, a trust will be created. The sum assured no longer forms part of the assured’s estate. As such, the assured cannot will it away.
     

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  2. I have nominated my sister in my life insurance policy but was told that my wife and children are the true beneficiaries. Is this true?If yes, how to I ensure she gets the money?
    Yes, it is true if you do not have a Will as the Insurance Act 1996 states that any person other than spouse, children and parent (if single) will only receive the policy money as an executor and must pass the money back to the deceased estate (or beneficiaries i.e. wife and children in this case). If your parents are alive they are entitled to a quarter of the money. Therefore, if you want her to receive this money, you can either assign the policy to her or write a Will in which you name her as the beneficiary to this particular policy.
     
     
  3. 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 should inherit.
     
     
  4. In what circumstance a Will need to be rewrite?
    They are a few situation you should consider rewriting a Will:
      1. Your Will is lost or destroyed
      2. You want to change the proportion or percentage of your estate distribution
      3. You want to change your beneficiaries, Guardian(s), Trustee(s) or Executor(s)
      4. Over the years, things and situations have changed, your Will does not reflects your wishes as to how your estate should be distributed.
         
         
  5. If I inherit a house from my father when he passed on, do I need to pay government estate stamp duty before transferring the house to my name?
    Yes, you do, only a nominal amount, it is not according to the current market value of the house. The estate stamp duty was abolished on 01/11/1991.
     
     
  6. Can I will away my immovable properties outside Malaysia in my Will?
    No, the immovable properties will normally follow the law governing the immovable properties as it can vary from country to country. Thus, it is advisable to write a separate Will for these immovable properties.
     
     
  7. What is ‘contemplation of marriage’?
    A testator’s valid marriage will automatically revoke a Will written prior to marriage. If a person at the time of making his Will is going to get married soon, a ‘contemplation of marriage’ clause stating that his Will shall not be revoked by his intended marriage to a particular person taking place can be inserted in the Will to prevent the Will being revoked upon the marriage taking place. It is essential that the name of the fiancée be mentioned in the Will.
     
     
  8. I have only a house to will away to my son, can I write a simple Will myself and just mention that I give my house to my son on my demise, sign by me and two witnesses? Is this simple will valid?
    If you write a simple Will without mentioning appointment of Executor/Trustee, a residuary clause and other essential clauses, your Will might become partial intestacy. Thus, it is always advisable to get a professional Will-writer to draft your Will to ensure it is a 100% valid Will.
     
      
  9. I have a son, named John from my relationship with a man whom had left me. Recently, I am married to A, if I do not write a Will, will my son John able to receive part of my estate under the Distribution Act 1958?
    No, as he is not a legitimate child. You need to write a Will to include him.
     
     
  10. I have two wives, one is legally married, and the other is not as Malaysian 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 executor for the moneys pay out from the insurance policies. Your legal wife and children has a right over the moneys she received. To protect her, states in your Will that this money is for her.
     
     
  11. I understand that the testator and two witnesses must sign the Will in the presence of each other, is this true?
    Yes, under the Act, the testator and witnesses must sign in the presence of each others.
     
     
  12. My client is a major shareholder of a Private Limited Company. Can he will away a piece of land which is registered under the name of the Company?
    No, the Private Limited Company is a separate legal entity and is the true owner of the piece of land. He only owns it indirectly through the shareholdings in the Company and as such he cannot will it away. However, he can instead will away his shares in the Company.

     
  13. I own a Private Limited Company. Can I will the shares to someone but, at the same time, put in a condition that the shares cannot be sold without the consent of a particular person?
    No. Putting the condition in the Will cannot be legally effective because the Will does not bind the Company whose shares are being held as it is a separate entity. Any restriction on transfer of shares has to be mentioned in the Memorandum and Articles of Association of the company concerned.

     
  14. Can I put everything under my company’s name instead of writing a Will?
    The first issue that will arise is what will happen to your shares in the company when you pass away. Who are going to benefit and how are you going to effect the transfer of those shares? Secondly, if it is not purely a holding company you should consider the risk of losing everything should the business fail and this defects the purpose of limited liability. Thirdly, any immovable property registered under a company will attract real property gains tax upon disposal irrespective of how long it was acquired. Last but not least companies will need to submit their annual reports and audited accounts every year and these will be considered public documents. As such, there will be a lack of confidentiality.
     
     
  15. Can a Power of Attorney be used to transfer my assets to my family upon death?
    A Power of Attorney normally allows the person whom the power is granted (the ‘donee’) to deal with the property of the donor e.g. selling, leasing or charging it or to enter into other legal transaction on behalf of the donor. A Power of Attorney will be revoked upon the death of either the donor or donee and as such it cannot be used like a Will to effect transfer of your assets to your family upon your death.

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Any queries on Will writing, contact alvinleow@rockwills2u.com.my  
 

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