Question No. 1: Who can benefit from a will?

INTRODUCTION

A will is basically a document formally executed according to the statutory requirements of Wills Act. It is an effective instrument to arrange a person’s estate where it enable a person to settle his assets for his loved one. By making a will, it also enable a person to effectively direct the management and distribution of his assets. In Malaysia, the law on will is governed by Wills Act 1959.

Section 2 of Wills Act 1959 provided the definition of will which stated that “will” means a declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil and an appointment by will or by writing in the nature of a will in exercise of a power and also a disposition by will or testament of the guardianship, custody and tuition of any child. [1]

However, it is not apply to Muslim as mentioned in Section 2 (2) which stated that this Act shall not apply to the wills of persons professing the religion of Islam whose testamentary powers shall remain unaffected by anything in this Act contained.

The terms that are used in a will are as follows:

(i) Testator, the person who making the will and he must be at least eighteen (18) years of age and of sound mind unless he is a soldier in actual military service or a mariner or seaman at sea.

ii) Executor (for male) and Executrix (for female), the person named by the testator to administer and distribute the estate. The Executor need not be a beneficiary.

iii)

iii) Trustee, the person who uphold the trust for the benefit of the beneficiaries.

iv) Beneficiaries, persons who inherit or benefit under the will. If there are minor beneficiaries, for example persons below the age of eighteen years named in the Will, there must be at least two executors.

WHO CAN BENEFIT FROM A WILL

1. Beneficiaries

1.1 Spouse

Spouse is most likely the first beneficiary designated in a last will. In most states, it is actually against the law if the testators try to disinherit his or her spouse upon his or her death. If testators wish to leave everything to his spouse, he should consider how well his spouse can manage finances, or provide for other dependents.

Exception:

If the spouse of the testator in whom he or she is also the attesting witness of the testator’s will, the spouse can not benefit from the will.

Under Section 9 of Wills Act 1959, “Gifts to an attesting witness or to wife or husband of attesting witness to be void”.

However, a gift by a will to a beneficiary is not rendered invalid by the fact that the beneficiary attests a codicil to a will, even though the codicil confirms the will. If he also receives a benefit under the codicil, the gift will be invalid.

2. Children (adopted / step children)

While it’s common to leave the assets to the spouse with the expectation that they’ll provide for the children, the testator may wish to create special provisions for their children, in case something happens to the spouse. This is especially true if the testator or the testator’s spouse have children from another marriage.

Obviously the children of the marriage can benefit from their parents’ will. Indeed they will be entitled to complain if their parents omit to mention them.[2]

Stepchildren need to be specifically named if the testators wish to benefit them. The law does not regard them as entitled to anything as of right so they will not be included in a gift referring to the testator’s children.

Illegitimate Child

The question arises whether an illegitimate child can be the object of a valid testamentary gift. Under Distribution Act 1958, “child” means a legitimate child and where the deceased is permitted by his personal law a plurality of wives includes a child by any of such wives, but does not include an adopted child other than a child adopted under the provisions of the Adoption Act 1952 [Act 257][3].

According to English law, it is necessary to differentiate between pre-1970 wills and post-1970 wills. In pre-1970 wills, a gift to an illegitimate child is valid. However, the rules with reference to gifts to future illegitimate children have been abolished with respect of disposition I wills or codicils executed

after January 1, 1970. [4]

There are likely to be cases where the effect of the old rules still applies due to the age of the will.

Case: Timothy Everard Upton v National Westminster Bank, Richard Tichborne Everard Upton and Rosalie Jane Prior (2012).

Facts: A grandfather made his will in 1930 and left three-fifths of his estate to his son who in turn purported to leave it in his will to his illegitimate son whom he had adopted during infancy. The son died first. The son's executors disputed the child's claim to his father's share of his grandfather's estate on the grounds of illegitimacy.

Judgment: The court held that the reference to ‘a child’ in the grandfather’s wills was a reference to legitimate children. No contrary intention appeared in the will. The provisions of the 1987 amendments were not retrospective. The share of the grandfather's estate which his deceased son would otherwise have inherited therefore passed to the surviving son and not to the deceased son's child.[5]

1.3 Other Family Members

In some cases it may be desirable to provide for siblings and elderly parents. In other cases, nieces and nephews may be appropriate choices.

1.4 Friends

Friends, particularly close friends, may be also important and can be appropriate beneficiary choices.

1.5 Charities

Charitable organizations provide important services, and many depend on gifts from estates as an important funding source. Leaving a bequest to one or more appropriate charities can help provide important services and benefits to the community and promote values that are important to the testator, and certainly are appropriate beneficiary choices. In addition, tax laws encourage charitable gifting, and as a result, significant income tax and estate tax saving scan be achieved through charitable gifting.

1.6 Contingent Beneficiaries

A testator should provide for the possibility that his first choice as a beneficiary will not survive him. He can name a contingent beneficiary to receive the assets in the event the first choice is unable to accept your bequest. You should provide for enough layers of contingent beneficiaries to reasonably assure yourself that beneficiaries will be available to receive the assets of your estate.

2. Mental patients

A mental patient has the right to be a beneficiary as if it is for his benefit as well as his upkeep.

3. Bankrupt

A bankrupt person can be named as a beneficiary but it is not advisable as the official assignee (OA) who has jurisdiction over all the bankrupt’s assets will have access to such gift.[6]

4. Executor

Executor can be a beneficiary of the will. However bear in mind though, that whoever witnesses the will cannot be a beneficiary of it. There is no restriction in the Wills Act 1959 to appoint a beneficiary as an executor in the Will. In fact if a person is leaving everything to a single person and the beneficiary concerned is of majority age and can manage the money well, it is recommended that the person be appointed as the sole executor.

WHO CANNOT BENEFIT FROM A WILL

1. Spouse to an attesting witness. Under Section 9 of Wills Act 1959, “Gifts to an attesting witness or to wife or husband of attesting witness to be void”.

Case: Ross v Caunters[7]

Facts: The testator instructed solicitors to draw up his will to include gifts of chattels and a share of his residuary estate to the plaintiff, who was his sister-in-law. The solicitors drew up the will accordingly, naming the plaintiff and giving her address in the will. The testator requested the solicitors to send the will to him at the plaintiff's home, where he was staying, to be signed and attested. The solicitors sent the will to the testator with a covering letter giving instructions on executing it but failed to warn him that under s 15 of the Wills Act 1837 attestation of the will by a beneficiary's spouse would invalidate a gift to the beneficiary. The plaintiff's husband attested the will which was then returned to the solicitors who failed to notice that he had attested it. The testator died two years later, and nine months after that the solicitors informed the plaintiff that the gifts to her under the will were void because her husband had attested the will. The plaintiff brought an action against the solicitors claiming damages in negligence for the loss of the gifts under the will, and for her legal expenses in investigating her claim up to the date of issue of the writ.

Judgment: The solicitors were held liable to Mrs. Ross for their negligence and she was awarded damages to the extent of the benefits she would have received under the Will of the Testator.

Subsequent marriage of witness

A subsequent marriage of the beneficiary to a witness does not affect the validity of the gift.

2. Person dead at the death of the testator.

In general, a gift cannot be made by will to a person dead at the date of the will, and the gift also fails if the donee dies before the testator, even though he is alive at the date of the will.

3. Murderer of the testator.

A person who is proved guilty of the murder of the testator and is not found to have been insane at the time cannot benefit under his will.

QUESTION 2: CONTENT OF WILLS

INTRODUCTION

The statutes governed the law of succession in Malaysia are the Wills Act 1959 (hereinafter referred as “Wills Act”), the Distribution Act 1958 (Distribution [Amendment] Act 1997, which amended s. 6 of the DA), the Probate and Administration Act 1959 Small Estates (Distribution) Act 1955 and the Inheritance (Family Provisions) Act, 1971. There are nowhere in these statutes that spell-out the standard format for the content of wills or any guidelines for any person to ease them in preparing their wills with regards of what they could have inserted inside their wills.

When we go through Wills Act, the law provides the guidelines on the formalities for the making of valid wills for instance Section 5 (1) of the Wills Act[8] provides that the wills must be in writing, and other mode of execution. It can be said that the wills can only be executed if the signature and attestation requirements proviso had been complied. Section 4[9] describes that the Testator must be of the age of majority and this means that the Testator must be 18 years and above and etc. We are unable to find any provision that specifically pointed out the content of the wills. Any person would love to know on how all these things can be put within the four corner of a piece of paper. What is the heading that the testator’s name fall under. Whether the Testator should include any date or should he put all of properties he owned.

CONTENT OF WILLS

In this premise we would like to discuss on the content of wills. There are only common practices among legal practitioner in preparing the wills.[10] Basically the wills must be read as a whole to the beneficiaries but the clause segregated the content of the wills is indirectly helping all parties who attending the reading of the wills. The wills shares the common clauses which it helps the testator to understand the nature of the will and also helps the Testator to recognize the properties he intended to dispose and also helps the beneficiaries to find out their rights by looking at the right clause i.e the introductory clause where the beneficiaries would know who is the testator and the bequest clause which deals with the persons entitled to the property as laid down by the Testator in his wills which will be discussed further.

The very first clause is the introductory clause[11] which is the most important clause provided under Order 71 Rule 5 (5) of Rules of Court 2012.[12] This clause provides full name, address and also other description of the Testator and other recent address as the introduction to the parties attending the wills so that the parties will identify the owner of the property. In other words, this clause is intended to give clear identification of the Testator.[13] Other than the identification of the Testator, the dates of that the will is written and revoke can also be inserted under this clause. There are also the declaration that the current wills made revokes all previous wills and codicils. If there is any codicil happened to exist after the making of the wills it must be described, identified and the date of the original wills must be

mentioned as such to avoid any arising issue in the near future.

The wills also consists of other clauses which is the bequest clause.[14] This clause normally consists of the list of persons who will receive the specific properties and assets. The method or ways the properties will be distributed also can be inserted under this clause in order to make sure that the executor has the guideline on how the beneficiaries will benefited the properties properly. This clause also consists of the directions on dispositions of the property where the bequest or legacies of particular articles and particular investment must clearly identify what is being bequeathed. The heading that is always comes into practice is “i give and bequeath the following pecuniary legacies” which it is advisable that no figures involved in this statement to avoid any omission of one figure which this omission will lead to future problem regarding the distribution of the exact amount of the pecuniary legacies. As such, it is preferably the statement be stated in words rather than figures. In the case of the distribution of land or house the appropriate words or description is “i give and devise”. [15]

Another important clause is the clause that identifies the executor/executrix. The clause must give a full description or proper identification on whom the power of executor is given. The ambigous word such as “my wife” is not advisable because it will bring uncertainty to the question on who is his wife during his death and who is his wife when the wills was made.[16] This uncertainty will only cause problem to identify and the appointment of the said executor will be interrupted. Any payment or expenses for the executorships work must be clearly mentioned in this clause. The appointment of any solicitors to deal with the estate may be mentioned however it is not essential to do so.

Another clause that is deemed to be inserted in the wills is the residuary clause.[17] As we can see that the bequest clause had dealt with the dispositions of specific property to the specific beneficiaries, this residuary will give direction on how any remaining property or assets that are not specifically bequeathed to individuals will be distributed. Without this clause, some property or assets may not be considered to be part of the testator’s estate and may be distributed according to the law of the state. This can be explained that the testator himself is not very sure of his property when he made the wills. The assumption that there will be some other property that is not within the sight of the testator, so the residuary clause will be dealing with this kind of property.

Furthermore, there are also some clauses that describe on how the testator's body should be disposed after his death.[18] The methods will be cremation, burial or for any science and medical purposes or organ donation may be mentioned but not an essential matters. Another clause that can be inserted is a direction on how the payment of debts and any estate taxes could be made which is also an option[19].

The next important clause is the attestation clause where the witnesses will sign and authenticate the will together with the testator's signature (signature page). There is also a self proving clause which is the notary assuring that he or she witnessed you and your witnesses sign the will.

REFERENCES

1. Wills Act 1959

2. Distribution Act 1958

3. Rules of Court 2012

4. “Making a Will”. Who May Benefit From A Will? 7 February 2013. Web. 11 March 2013.

5. “Rockwills: Professional Will Writing and Trust“, Frequently Asked Question. Web. 11 March 2013.

6. C.H. Sherrin, R.F.D. Barlow, and R.A. Wallington. William’s Law relating to Wills. London: Butterworth & Co (Publishers) Ltd, 1980. Print.

7. “where's there a will there a way”. April 2011. Web. 11 March 2013.

8. Mahinder Singh Sidhu. The Law at Wills Probate Administration and Succession in Malaysia and Singapore, International Law Books Services Publisher, 1998.

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[1] Section 2 of Wills Act 1959

[2] “Making a Will”. Who May Benefit From A Will? 7 February 2013. Web. 11 March 2013.

[3] Section 3 of Distribution Act 1958.

[4] C.H. Sherrin, R.F.D. Barlow, and R.A. Wallington. William’s Law relating to Wills. London: Butterworth & Co (Publishers) Ltd, 1980. Print.

[5] “Making a Will”. Who May Benefit From A Will? More On Illegitimate Children. 7 February 2013. Web. 11 March 2013.

[6] “Rockwills: Professional Will Writing and Trust“, Frequently Asked Question. Web. 11 March 2013.

[7] [1979] 3 All ER 580

[8] Section 5 (1) of the Wills Act

[9] Ibid.

[10] “where's there a will there a way”. April 2011. Web. 11 March 2013.

[11] ibid

[12] Order 71 Rule 5 (5) of Rules of Court 2012

[13] Mahinder Singh Sidhu. The Law at Wills Probate Administration and Succession in Malaysia and Singapore, International Law Books Services , 1998.

[14] “where's there a will there a way”. April 2011. Web. 11 March 2013.

[15] Mahinder Singh Sidhu. The Law at Wills Probate Administration and Succession in Malaysia and Singapore, International Law Books Services , 1998.

[16] Ibid

[17] “where's there a will there a way”. April 2011. Web. 11 March 2013.

[18] Mahinder Singh Sidhu. The Law at Wills Probate Administration and Succession in Malaysia and Singapore, International Law Books Services , 1998.

[19] “where's there a will there a way”. April 2011. Web. 11 March 2013.