Forum (2) "DRAFTING WILL-DIY"

The Speaker and the participants

1. Definition :

(a) Wikipedia: In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his or her property or family after death. In the strictest sense, "will" is a general term, while "testament" applies only to dispositions of personal property (this distinction is seldom observed). A will is also used as the instrument in a trust.

(b) Oxford Dictionary of Law- A document by which a person (called the testaor) appoints executor to administer his estate after his death, and directs the manner in which it is to be distributed to the beneficiaries he specifies.

(c) Section 2(1) Wills Act -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 guardinship, custody and tuition of any child”.

2. Law Governing Estate In Malaysia:

(a) Wills Act
(b) Distribution Act 1958
(c) The Presumption of Survivorship Act 1950
(d) Legitimacy Act 1961
(e) Law Reform (Marriage And Divorce) Act 1976
(f) Probate And Administration Act 1959
(g) Trustees Act 1949, Trustees (Incorporation) Act 1952 and Public Trust Corporation Act 1995.
(h) etc

3. Intestate - Distribution Under the Distribution Act 1958

---Intestate Leaving ---Portion Obtained from the Estate ---

1. Spouse, no issue, no parent Spouse gets all

2. Spouse, parent/parents, no issue Spouse gets half, the parent/parents gets half

3. Issue, no spouse or parent(s) Issue gets the whole

4. Parent(s), no issue, no spouse Parent(s) gets whole

5. Spouse and issue , no parent Spouse gets 1/3, issu gets 2/3

6. Issue and parent(s), no spouse Issue gets 2/3, parent 1/3

7. Spouse, issue and parent(s) Spouse gets ¼, issue get ½, parent(s) 1/4

No spouse, issue or parent
(In Sequence on trust)

a. Brothers and sisters In equal share

b. Grandparents If more than 1, then in equal shares absolutely

c. Uncle and aunties In equal shares

d. Great grandparents In equal shares

e. Great grand uncles and

great grand aunties In equal shares

4. Legitimacy And Outcome Without A Will
- In the case of Shanmugam v Pappah [1994] 1 MLJ 144, the Plaintiff said he was the legitimate son of the deceased and the defendant said she was the legitimate wife of the deceased under Indian rites. The Court held that the plaintiff though the son of the deceased failed to prove that he was the legitimate son, the defendant not the legitimate wife, none were entitled to succeed to the estate of the deceased who died intestate.
5. Category of Estate:

(a) Movable Assets
(b) Immovable Assets
(c) Liabilities
(d) Custody/Guardianship of the Child - (Executors must be a trust corporation or not less than 2 individuals unless the Court granted otherwise - for cases where no both parents decease.)
(e) Etc excluding trust property or anything held by the testator under trust.

6. Points To Be Remembered
1. It is automatically revoked if the testator marries (section 12 of the Wills Act) except where at the time it was made the testator was expecting to marry a particular person and he intended his will to survive the act of marriage (see Oxford Dictionary of Law)
2. There is no law that requires a will be drawn up by a lawyer, or any other agency.
3. There should not be an ambiguity in the Will
4. Terminology used in Wills and Court
(a) A bequest is a gift in the form of personal property.
(b) A devise is special gift of real property in a will.
(c) A devisee is a person who receives a devise.
(d) A legacy is a gift. Historically, a legacy has referred to either a gift of real property or personal property.
(e) A legatee is a person who receives a legacy.
(f) An executor is the person to administer the estate, generally subject to the supervision of the probate court, in accordance with the testator's wishes in the will. In most cases, the testator will nominate an executor in the will.

7. Requirements for the creation of a will
1. In history, the shortest known legal will made by one Bimla Rishi of Delhi, India. His will which was dated on February 9, 1995 and written in Hindi, translating as "all to son" and consisting of just four characters. Another one was by Karl Tausch, his will dated January 19, 1967 is in Czechcoslovakia and which consists of the phrase vše ženě "all to wife".
2. Any person over the age of majority (18 years old -section 4 Wills Act) can draft their own will without the aid of an attorney. Every will must contain the following:
(a) The testator must clearly identify himself as the maker of the will, and that a will is being made. this is commonly called "publication" of the will, and is typically satisfied by the words "last will and testament" on the face of the document.
(b) The testator must declare that he revokes all previously-made wills and codicils. Otherwise, a subsequently-made will revokes earlier wills.
(c) The testator must demonstrate that he has the capacity to dispose of his property, and does so freely and willingly.
(d) The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries).In the USA, Pennsylvania does not require the signing of the will to be witnessed
(e) The testator's signature must be placed at the foot or end of the will (Section 5 -Wills Act). If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.

3. Forms and Clauses in a Will

(a) There is no specific form for a will but most wills would have the following clauses:-
(i) Commencement date
(ii) Declaration to revoke previous wills and testamentary instruments
(iii) appointment of executors and trustees
(iv) Executor’s powers and rights to the estate, ie to convert the assets into cash and distributes the same among the beneficiaries, ie to confer upon the executor the rights which are not provided for by statute including power to carry on his business after his death, to invest in investments beyond those authorized by statute and to accumulate income and postpone distribution within the perpetuity period.

7A Witnesses
- Must be 2 person who have attained the age of majority and of sound mind and must be a disinterested witness.
- There is a prohibition against beneficiaries of a will signing as witness but the gift to such attesting beneficiary or to his or her spouse will be nullified.
- The spouses of beneficiaries also fall within this prohibition.
- The signature of the testator must be at the foot of the will, as any writing appearing below the signature will not be valid.
7B Appointment, Qualification and Duties of the Executor In Will
- Above 21 years old so that the deceased’s assts vested in him and transact the deceased’s affair and not a bankrupt
- no special qualification- usually family member/lawyer/close friend.
- Failing to Appoint Executor in Will is not fatal and a Letter of Administrator can be granted (Section 16 Probate And Administration Act 1959).
- Duty of the Executor is to distribute the estate amongst the different beneficiaries but all expenses/liabilities will fall on the estate in which the Executor is entitled to be reimbursed.
- In Malaysia, extra powers are given to the trustee/executor/administrator under the Trustees Act 1949, Trustees (Incorporation) Act 1952 and Public Trust Corporation Act 1995.
7C Revocation of Wills (Section 14 of the Wills Act)
1. A will may also be revoked by the execution of a new will or executing another will.
2. By some writing declaring an intention to revoke the will and executed in the same manner as a will.
3. By burning or destroying the will by the testator or by someone in his presence and by his intention, with the intention of revoking the will.
4. In England and Malaysia, marriage will automatically revoke a will as it is presumed that upon marriage, a testator will want to review the will.
5. Divorce, conversely, will not revoke a will, but will have the effect that the former spouse is treated as if they had died before the testator and so will not benefit.
6. Where a will has been accidentally destroyed, on evidence that this is the case, a copy will or draft will may be admitted to probate.
7D Reviving A Will
- a will revoked can only be revived by reexecution and showing an intention to revive the same.
7E Strange Wills.
- Charles Vance Millar's will was notorious for offering the bulk of his estate to the Toronto woman who had the greatest number of children in the ten years after his death (the Great Stork Derby). Attempts to invalidate it by his would-be heirs were unsuccessful, and the bulk of Millar's fortune eventually went to four women. Another famous case, Estate of Kidd involved a will found on a deceased Arizona prospector who left his entire $250,000 estate "for research or some scientific proof of a soul of the human body which leaves at death. I think in time there can be a photograph of a soul leaving the human at death."
7F Advantage of testacy

No.
Subject
Testacy
Intestacy
1.
Vesting of deceased’s estate
Vest in the executor upon death enabling the executor to handle deceased’s affairs subject to certain limitation and production of probate if and when required

X vest in the administrators until after letter of administration have been obtained.
2.
Right to carry on with deceased’s affairs
Executor have such rights subject to the validations of their actions by extraction of probate and provision of the will

No such right, administrators duty is to call in the assets and distribute
3.
Right to choose one’s beneficiaries and their shares

Testators has a free hand subject only to leaving reasonable provision for dependants
Succession to estate is determined by the provisions of the laws on intestate succession
4.
Sureties to the administration of the estate
Generally in Malaysia, it is not required
Sureties required to the gross value of the estate. Consequently, time, cost and delay involved in extracting grant
5.
Preservation of family wealth
A testator can stipulate that part or the whole of the family wealth is to be preserved subject to the rule against perpetuities and accumulations, for a period of time, this would ensure that family wealth is not squandered by heirs

There is no such saving of wealth as distribution of the estate has to take place soon after probate and estate duty formalities are completed.
6.
Guardianship of infants
A will can provide for guardians for infant beneficiaries so that reliable person who are competent to care for the infants can be provided
There is no certainty as to who will be the guardian if both parents have passed away. Sometimes there may be disputes as to who is the most suitable person to be the guardian

7.
Identify of Assets
A will can assist the executors and beneficiaries to identify the assets of the testator and easier to distribute the same
There is no easy way for the administrator or beneficiaries to locate the assets of the deceased and any unclaimed land or money in bank may be taken over the Government.

8. Process of Application For Grant of Probate/ Letter of Administration
1. After the testator has died, a probate or letter of administration (pending the location of lost will) proceeding may be initiated to allow the appointment of Executors or Administrators. In Malaysia, amount below RM600,000.00 will goes to the Land Office (the 2007 amendment of the Small Estates (Distribution) Act 1955 which has yet to be in force will raise the amount to RM2 million.
* No actions can be taken prior to the obtain of the sealed Grant of Probate/ Letter of Administration or actions will be deemed to be without authority.
2. In England and Malaysia, a will may disinherit a spouse, but close relations (especially those with proof of incapacity or unsound mind) excluded from a will (including but not limited to spouses) may apply to the court for provision to be made for them at the court's discretion.
3. A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. In community property jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate.
9. Restriction on Grant
There shall not be more than 4 persons appointed to be executor in regard to the same property (Section 4 (1) Probate and Administration Act 1959)

10. Case Sharing
(a) In the case of Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19, Gopal Sri Ram JCA held that :
“ It is settled law where the validity of a will is challenged, the burden of proving testamentary capacity and due execution lies on the propounder of the will as does the burden of dispelling any suspicious circumstances that may surround the making of the will. However, the onus of establishing any extraneous vitiating element such as undue influence, fraud or forgery lies on those who challenge the will.
We consider it to be well established general guide to the judicial appreciation of handwriting evidence that where there is a sharp conflict between the direct testimony of a disinterested witness on the one side and that of a handwriting expert on the other as to the genuineness of the execution of a document, then it is a safe course for a court to prefer the direct evidence.”
(b) In the case of Tay Seck Loong & Ors V. Teh Chor Chen & Ors [2005] 8 CLJ 686, Low Hop Bing J held:
“ The object of interpreting a will is to give effect to the intention of the testator that is expressed in the words of the will and such words are to be read in the light of the circumstances in which the will was made (Hsu Yik Chai v. Hsu Yaw Tang & Anor. [1983] CLJ 170 (Rep) ;[1983] 1 CLJ 19; [1982] 2 MLJ 227 at p. 230 (FC) per Lee Hun Hoe CJ (Borneo) (as he then was)”
(c) In the case of How Yew Hock (Sebagai Wasi Untuk Yee Sow Thoo @ Chor Siew Tho (P)) V. Lembaga Kumpulan Wang Simpanan Pekerja [CIVIL APPEAL NO. 02-372 OF 1994], the Federal Court held:
“Although the nomination had certain testamentary characteristics, and not
least that of being ambulatory, they were insufficient to make the paper
on which it it is written a testamentary paper. The nomination not being
a testamentary document, it did not have to satisfy the requirements of
the Wills Act 1959.”



Reference

(a) Wills Act
(b) Distribution Act 1958
(c) The Presumption of Survivorship Act 1950
(d) Legitimacy Act 1961
(e) Law Reform (Marriage And Divorce) Act 1976
(f) Probate And Administration Act 1959
(g) http://en.wikipedia.org/wiki/Will_(law)
(h) Family Law In Malaysia - Mimi Kamariah Majid
(i) Current Law Journal
(j) Malaysia Law Journal
(k) Trustees Act 1949, Trustees (Incorporation) Act 1952 and Public Trust Corporation Act 1995.

Forum (2) "DRAFTING WILL-DIY"

DATE：28 June 2008

TIME：8：00PM - 10：30PM

VENUE：Puchong, Selangor

MODERATOR：TAN CHUN MING