Making a will is one of the most important things you’ll ever do as it will ensure your loved ones will be taken care of by your estate after your demise.
One way to draw up a will is by writing it out yourself as allowed under the Malaysian Wills Act 1959. A DIY will costs the least in initial ringgit outlay (it’s free), but it does have its drawbacks.
NOTE: This article is only applicable to non-Muslims of Malaysia and non-natives of Sabah and Sarawak.
What Is A Will - A will is a legal document in writing signed by you (testator) and witnesses, setting forth your wishes about distributing your property and care of minor children (if any). A will does not include all property.
Issues to be paid to a named beneficiary, such as the Employees Provident Fund (EPF), life insurance policies, unit trusts, private retirement scheme (PRS), or annuities are not within the scope of a will.
When To Consider A DIY Will - You should only write your own will if you have simple wishes or straightforward distribution of property and liquid assets. For example, if you’re married and want to leave everything to your husband or wife, or if they die before you, you want to leave everything to your children.
You will also need to have a good understanding of estate planning, and have thought through various scenarios. If you have circumstances more complicated than the above, best to use professional will writing services instead.
When Not To DIY - If any of the examples listed below apply to you, it is recommended to engage professional estate planning services:
• You have a sizeable or complicated estate which includes:
(i) multiple properties and/or properties in other countries.
(ii) overseas investments and/or bank accounts.
(iii) complex business structures.
• You are handing over a business to someone as a will is often not the best tool for this purpose.
• Individuals other than your immediate family members are financially dependent on you.
• You have specific wishes that may be misunderstood or considered complex. Language and wordings must be precise to avoid misunderstanding.
• You have peculiar family ties.
Risks Of A DIY Will - To recap, only use a DIY will if you have simple wishes and a non-complicated estate. You risk your will being possibly invalidated or distributed not according to your wishes due to the following reasons:
• Specifying the wrong intentions, which may lead to unintended distribution.
• Omitting key clauses such as the residual clause, inserted to catch any assets not mentioned in the will.
• Omitting trust beneficiaries that opens up your will to possible contest.
• Having your beneficiary also sign off as a witness whereby your witness would lose rights and only be a witness as stated in the Malaysian Wills Act 1959.
• Misspelling of names.
• Assets which are not easily traceable.
• No one to proofread your will with a critical and professional eye. You may not know what you do not know.
Most wills follow a set of standard rules for what you say as well as how you say it. These standards remove any uncertainty about what you mean.
Even if the language seems strange at first to a layman, incorrect usage of words may cause your instructions to not be followed, or cause your will to be invalid. Writing your own will may save you money but is it worth it? If it goes wrong, your loved ones will face unnecessary hurdles or troubles in materialising your wishes.
Using a will template is not 100% fool-proof. The template provider takes no responsibility if anything goes wrong with your will distribution. If your will is declared invalid, the law will then decide who and where your money and property goes. This can become an extremely lengthy, tiring, and time-consuming process.
Your executor may face a challenging and time-consuming time as well to execute your will. It is advised to have backup executors in case your initial executor is unable or unwilling to proceed.
How To Execute A DIY Will - A DIY will must be printed or written by hand. The will is valid if it satisfies the following rules:-
• Signed by all relevant people.
• The testator must be at least 18 years old and of sound mind.
• If you are sick when you sign the will, get your doctor to certify you are of sound mind at the time of signing.
• Signed by two independent witnesses aged 18 and above, and who are not beneficiaries of your will. The witnesses have to be in attendance when you sign the will but do not have to see the contents of your will distribution.
If you do decide to write your own will, here are a few reminders:-
• Make sure the will is signed, dated and has two witnesses.
• Check the spelling especially for names.
• Be unambiguous and specific.
• Destroy any earlier wills.
• Inform the executor of the location of the will.
• Use a template which has standard sections and legal terms included.
When Can Your Will Be Challenged - The testator’s intentions must be clearly and expressly stated in the will allowing no room for ambiguity or omissions that attract dispute.
Yet a will, regardless of whether it was a DIY will or professionally written, can be challenged by any “interested persons” who have an interest and legal standing to gain from the will.
Common reasons to challenge are:-
• Testator’s signature is fake or forged.
• Testator was of unsound mind or under undue influence to write the will.
• Contents have been illegally amended.
• Execution is not properly witnessed in the presence of the testator.
• Existence of a newer will voiding the older one.
Additionally, under the Inheritance (Family Provision) Act 1971 if in the court’s opinion your estate does not make reasonable provision for the maintenance of your spouse; or an unmarried daughter; or an infant son; or a child with mental or physical disability, the courts have the power to make a reasonable provision.
What is “reasonable” depends on how big the estate is, the interest of the named beneficiaries, the assets and income of the dependent, and the conduct of the dependent to the deceased.
This article first appeared in https://mypf.my
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