Why Must You Make A Will – Malaysian Perspective

A will is a declaration of a person’s intention concerning the disposition of his property after his death. It has no legal effect until the death of the testator (the person who makes a will).

In a will, the testator states the person who will conduct the distribution of his property (executor) to the person whom he wishes to give (beneficiary). He may wish to appoint a trustee to deal with his property such as to insure, to sell or to rent out his property. He can even appoint a guardian beside his spouse to take care of his children until they reach the age of majority.

There are a few compelling reasons why a person must make a will during his lifetime.

Firstly, a testator can bequeath his property to the persons he wish to bequeath in his will. For instance, he may wish to donate part of his property to a charitable organization or give part of it to a friend. Without a will, a person’s estate will be distributed according to the Distribution Act 1958. According to the Distribution Act 1958, the statutory beneficiaries are his spouse, issues (children, if no children grandchildren) and parents. The Court however, may intervene if a testator’s dependant who is not named as a beneficiary in the will applies for review.

Secondly, in the event of a person dies without a will, those who are entitled to his property as of right namely spouse, issues and parents will have to elect an administrator to take charge of the distribution of the estate. The administrator will have to apply through a lawyer to the Court for issuance of a letter of administration before distribution of the estate. If his spouse, issues and parents are not in good relationship, they may face difficulty in the election of an administrator. In contrast, if a person dies with a will, the person who conducts the distribution of estate is stated in the will. He is the executor. He will apply to the Court for issuance of a grant of probate before the distribution of the estate.

Thirdly, in the case of a person dies without a will, the Court requires two sureties who could respectively guarantees the gross value of the estate. If the gross value of the estate worth one million dollar, it will not be easy to look for a relative or a friend to be a surety. Contrary to such situation, if a person dies with a will, no surety is required by the Court.

Fourthly, the application to the Court for a letter of administration will take about three to five years due to the difficulty in the election of an administrator, looking for sureties, finding out the deceased’s estate etc. In contrast, it only takes about six months for the Court to issue a grant of probate.