You Can Write Your Own Will in Malaysia, But Should You?
Relevant law and authorities: Wills Act 1959 – s3, s4, s5; Distribution Act 1958 – s6. Banks v Goodfellow 1870; Kenward v Adams 1975; Kek Siong Uteh v Aw Siew Keon 2016 …
*Statutes applicable only to non-Muslims in West Malaysia.
Requirements of a will under the Wills Act 1959…
In Malaysia, there are 3 main legal requirements for a will to be valid according to the Wills Act 1959: firstly, for the testator (a person who writes a will) to be of the age of majority; secondly, for the testator to be of sound mind when signing; and thirdly, for it to abide by the required procedures for the execution of a will.
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The requirement of “sound mind” referred to above comes from s3 of the Wills Act, and essentially means that the testator must have the testamentary capacity to write a will, including possessing sound mind, memory and understanding. This stems from a 3-part legal test to determine testamentary capacity established in Banks v Goodfellow, which clarifies the criteria that “the testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect…”.
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The “age of majority” standard from s4 of the Wills Act provides the rule that for a will to be valid, the testator must be at least 18 years old at the time of writing and signing the will.
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Section 5 of the Wills Act sets out the required mode of execution for a valid will, namely that the will must be: in writing, signed by the testator, with that signature made or acknowledged in the presence of 2 witnesses, and then signed by the 2 witnesses in the presence of the testator.
These rules ensure that the will accurately reflects the testator’s informed decision though mental capacity tests and provides safeguards from interference or fraud through the adherence of the rules on execution.
Can you write your own will?
Based on the requirements of a valid will outlined in the previous section, yes, you could technically write your own will. There is no strict requirement of needing a lawyer and compliance with the basic requirements of a valid will are generally straightforward enough to fulfil for an average person.
However, there are complex nuances in writing wills that could cause potential pitfalls when attempting to do it yourself. The law only ensures the reliability and authenticity of a will, but does nothing to guarantee the quality of drafting and therefore its effectiveness in practice.
Potential mistakes of DIY wills…
The first major mistake is procedural in nature, meaning it involves failing to properly fulfill one of the essential legal procedures explained in the first section of this article. One way this could manifest is by the testator not having the necessary testamentary capacity to comprehend the will they are signing, hence rendering the will signed at that time invalid.
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Kek Siong Uteh v Aw Siew Keon 2016 The deceased had a later will surface that was written towards the end of his life, specifically after he suffered a stroke that significantly impaired his mental capacity. His doctor testified that he had significant impairment to his memory, and that he subsequently developed dementia as a result. Hence, the older will was held valid and the new will was held invalid by the courts because the deceased lacked the testamentary capacity at the time the newer will was executed, among other factors. |
Additionally, not ensuring there is sufficient evidence of testamentary capacity, particularly in situations where it could reasonably be questioned, could cause issues with validity. If the testator is elderly or has been ill and/or suffered from mental illness in the past, and their testamentary capacity is unclear, medical expertise certifying the testator’s mental state at the time of signing can help defend the will from challenges against its validity.
The second mistake of procedure that could occur is an error in choosing witnesses. It is important for the witnesses to be adults of sound mind so that they may confirm the authenticity and validity of the will. However, the witnesses also must not be beneficiaries of the will or spouses of beneficiaries of the will at the time of signing. If one of the witnesses is also a beneficiary, the gift to that witness is void. This would mean that the will as a whole is still valid, but the assets intended for that witness would not be able to be distributed according to the testator’s instructions.
Another potential mistake is poor drafting, such as failing to sufficiently provide contingency provisions. There could potentially be circumstantial changes that occur before the will can take effect, such a beneficiary named in your will not surviving longer than you. Without contingency clauses, if a beneficiary of the will passed away before the will comes into effect, the assets gifted to them would lapse meaning they fail and cannot be executed according to the testator’s instructions.
Finally, the mistake of not including a residuary clause in the will to prevent assets from going unaccounted for could cause numerous assets of the estate to not be allocated under the will. An effective residuary clause covers all the loose ends in a will arising either from a gift that cannot be performed due to being voided, lapsing or failing, or from any minor assets that were unintentionally left out of the will. Without a residuary clause, there will be no way to pass on assets onto a residuary beneficiary, meaning the unaccounted assets are not governed by the will.
Consequences of the aforementioned common mistakes…
If at least one of the requirements for a valid will given by s3, s4, and s5 of the Wills Act are not fulfilled, there is no valid will to govern the distribution of your estate, leading to the entirety of your estate becoming intestate, which is the state of passing away without a will. In this case, the estate would be distributed by an administrator according to s6 of the Distribution Act, which allocates fixed proportions of the estate to each of your legal family members depending on the combination and numbers of surviving relatives.
If there is a valid will, but there are issues affecting the effectiveness of aspects of the will, such as a clause failing, lapsing or being voided, or some assets not being included, along with the lack of a residuary estate, then there will be partial intestacy of the estate. This means that only the specific assets that are unable to be allocated under the will are distributed according to s6 of the Distribution Act.
An additional consequence of intestacy or partial intestacy, beyond the impersonal distribution, is that those assets cannot be distributed under the grant of probate from a will, and hence would need a separate application for a letter of administration. This is generally a longer process so it is likely to slow down and complicate the process of distributing the estate.
Benefits of hiring a lawyer instead?
By hiring a professional, they can organise and supervise the execution of the will, helping avoid the potential risk of accidentally creating an invalid will by not complying with the legal requirements under statute. For example, to minimise challenges, they will be able to prepare the will according to established best practice, like the golden rule established in Kenward v Adams. The case suggests getting a doctor’s approval of the testator’s adequate mental state when the individual is elderly or has a past or present illness that may bring into question the capacity of the testator, preventing arguments and challenges over the validity of the will on this technical basis.
Additionally, a lawyer can advise on when contingency plans are necessary to ensure the effectiveness of the will in different scenarios. This includes drafting alternative options for gifts and substitute beneficiaries to account for any changes in circumstance, helping to avoid gifts from lapsing or failing.
Finally, they can ensure the inclusion of a proper residuary clause to encompass any assets not effectively disposed of by the will to avoid becoming partially intestate and subjecting the estate distribution process to disputes and delays over the letters of administration application process and potential disputes over the standard legal distribution shares.
Conclusion…
Overall, DIY wills can work for some people who have straightforward estates and simple wishes. However, drafting can quickly become complex if the estates are large or have complex combinations of assets, such as multiple different types of properties or assets in other regions, or if there are intricate family dynamics. In such cases, mistakes may risk invalidating the will through procedural errors, and potentially undermine its effectiveness through issues such as failed gifts or partial intestacy. Such situations warrant being handled by professionals to ensure the will operates according to the testator’s intention and remains effective.
Drafted by See-Teng Wong under the supervision of Partner Patrick Tan Yan Hong.
Disclaimer:
This article is intended for informational purposes only and does not constitute legal advice. Every situation is unique, and specific legal advice should be sought based on the particular circumstances. Readers are encouraged to contact us at info@tnhlaw.com.my if they require legal advice or have any questions regarding the content of this article.
