Drafting a will is a crucial step in estate planning, ensuring that your assets are distributed according to your wishes after your passing. In Malaysia, writing a will is governed by the Wills Act 1959, which sets out the legal requirements and formalities. This practical guide provides a step-by-step process for drafting a will, highlighting the essential elements, necessary formalities, and witness requirements to create a legally binding document.
Step 1: Understand the Basics of a Will
A will is a legal document that specifies how a person's assets and property are to be distributed after their death. It also allows the appointment of guardians for minor children and specifies wishes for funeral arrangements. Understanding the basic components of a will is the first step in drafting one.
Step 2: Determine Eligibility to Make a Will
In Malaysia, the Wills Act 1959 stipulates the following eligibility criteria:
Age Requirement: The person making the will (the testator) must be at least 18 years old.
Mental Capacity: The testator must be of sound mind, meaning they must understand the nature and effect of the will, the extent of their assets, and the claims of potential beneficiaries.
Step 3: List Down Your Assets and Liabilities
Before drafting your will, make a comprehensive list of your assets and liabilities. This list helps in ensuring that all your possessions are accounted for and that you can make informed decisions about their distribution. Consider including:
Real estate properties
Bank accounts (savings, fixed deposits)
Stocks, bonds, and other investments
Personal belongings (jewelry, vehicles, valuable collections)
Business interests
Insurance policies
Outstanding debts or liabilities
Step 4: Identify Your Beneficiaries
Beneficiaries are the individuals or organizations to whom you wish to leave your assets. They can include family members, friends, charitable organizations, or other entities. Be specific in naming beneficiaries to avoid ambiguity. For example, use full names and, if applicable, specify relationships (e.g., "my son, John Tan") to ensure clarity.
Step 5: Appoint an Executor
An executor is a person responsible for administering your estate according to the terms of your will. The executor’s duties include gathering assets, paying debts, and distributing the remaining assets to the beneficiaries. Choose someone trustworthy, responsible, and willing to take on this role. It is advisable to appoint an alternate executor in case your primary choice is unable or unwilling to act.
Step 6: Appoint Guardians for Minor Children
If you have children under the age of 18, appointing a guardian in your will is crucial. The guardian will be responsible for their care and upbringing in the event of your death. Choose someone who shares your values and is capable of taking on the responsibility. Again, naming an alternate guardian is a prudent step.
Step 7: Specify How Your Assets Should Be Distributed
Clearly outline how your assets should be distributed among your beneficiaries. You can allocate specific items or amounts to certain individuals or divide your estate into percentages. For example:
"I leave my house at [address] to my wife, [name]."
"I give 50% of my savings to my daughter, [name], and 50% to my son, [name]."
"I leave RM10,000 to [charity name]."
Step 8: Include a Residuary Clause
A residuary clause deals with any assets not specifically mentioned in the will. This clause ensures that any forgotten or unknown assets are distributed according to your wishes.
Step 9: Outline Funeral and Burial Arrangements
While not legally binding, expressing your wishes for funeral and burial arrangements can provide guidance to your loved ones. Specify whether you prefer burial or cremation and any specific instructions for your funeral service.
Step 10: Sign and Date the Will
To make your will legally binding, you must sign and date it at the end. Ensure that your signature is clear and matches the one on your identification documents.
Step 11: Witness Requirements
In Malaysia, the Wills Act 1959 requires that a will be witnessed by at least two individuals who are present at the same time. Both witnesses must:
Be over the age of 18.
Be of sound mind.
Not be beneficiaries or spouses of beneficiaries named in the will.
The witnesses must sign the will in the presence of the testator and each other. The role of the witnesses is to confirm the authenticity of the testator’s signature and the execution of the will.
Step 12: Store Your Will Safely
Once your will is signed and witnessed, keep it in a safe place where it can be easily found after your death. Inform your executor and trusted family members or friends about the location of your will. Some options for safe storage include:
A secure home safe
Deposit with a lawyer
A bank’s safe deposit box
Step 13: Review and Update Your Will Regularly
It is essential to review and update your will periodically, especially after major life events such as marriage, divorce, the birth of children, or significant changes in assets. To make changes, you can draft a new will or create a codicil (a supplementary document that amends the original will). Ensure any changes are made in compliance with the formalities required by the Wills Act 1959.
Step 14: Consider Engaging a Lawyer
While it is possible to draft a will on your own, engaging a lawyer who specialises in estate planning can provide valuable guidance and ensure that your will meets all legal requirements. A lawyer can help you navigate complex situations, such as blended families or significant business interests, and minimise the risk of disputes among beneficiaries. Consulting a lawyer can provide peace of mind, knowing that your will is comprehensive and legally sound.
Conclusion
Drafting a will in Malaysia is a straightforward process if you follow the essential steps and legal requirements outlined in the Wills Act 1959. By having a valid will, you can ensure that your assets are distributed according to your wishes, provide for your loved ones, and minimize potential disputes.
Have questions or need further guidance? Contact our managing partner, Eugene Yeong, for legal advice.