Ensuring Your Legacy: A Will That Reflects Your Intentions

“Some died poor. Some died rich. The fact remains that we all must leave everything behind when we die one day. Some leave a legacy of faith, hope, and love; others, a legacy of wealth.

~ Lee Swee Seng J (as His Lordship then was) in
Re Estate of Tan Sri Datuk Syed Kechik, Deceased [2011] ~

Estate planning might not be the most popular topic, but it plays a vital role in securing your family’s future. Effective estate planning not only ensures financial security but also fosters peace and understanding among loved ones. Without proper planning, families may find themselves embroiled in disputes over the very assets the deceased worked hard to accumulate – an outcome no one wishes for those they leave behind. 

While many people assume estate planning is only relevant in old age or for those with substantial wealth, it is much more than that. It is about ensuring that your wishes are clearly understood and that your loved ones do not have to face confusion or conflict after you are gone. Without this, family members may be left in limbo, grappling with your loss and the complexities of sorting out your estate. A thoughtful, well-structured estate plan is proactive and respectful of those who will manage your legacy.

Drafting a Will

Drafting a Will is essential, and its importance cannot be overstated. A well-drafted Will not only expresses your wishes but also helps prevent misunderstandings and minimizing conflicts among beneficiaries. It allows you to appoint your preferred executor, decide on bequests, and appoint guardians for minors. The Wills Act 1959 (“Wills Act”) sets out elements of a valid Will. Among others –

• A Will must be in writing.¹
• The testator must be at least 18 years old.²
• The testator must be of sound mind³ and have testamentary capacity when signing the Will.
• The Will must be properly executed and signed in the presence of two witnesses at the same time.⁴

Understanding Testamentary Capacity

The testator, or person making the Will must have “testamentary capacity” – meaning he is fully conscious, of sound mind and fully understand the contents of the Will.⁵ Disputes can arise if there are doubts about the testator’s testamentary capacity or suspicious circumstances. For instance, in Premavathy Balakrishnan [2019],⁶ the plaintiff challenged the validity of the Will, claiming the deceased lacked testamentary capacity due to his deteriorating medical condition and alleging suspicious circumstances. The Court of Appeal upheld the High Court’s decision, finding the deceased had testamentary capacity when executing the Will. The witnesses’ testimony and evidence point to the lucidity and clarity of deceased’s mind and actions when he executed his Will. The Will complied with all the formal requirements set out by section 5 Wills Act and the deceased’s intentions were expressed clearly and rationally in the Will.

Steps to Create a Will

1. Contact a Will Writer or Lawyer: Although you can draft a Will yourself, consulting a professional can help to ensure all legal requirements are met, making the Will valid and reducing the risk of challenges. 

2. Select a Trusted Executor: The executor is responsible for carrying out the instructions in your Will. It is crucial to choose someone reliable and capable of handling your estate responsibly. 

3. Choose Witnesses Wisely: It is crucial to have 2 independent witnesses to sign the Will. They should not be the beneficiaries to avoid conflicts of interest. Choose people you trust who can verify the Will’s validity if needed. Having impartial witnesses reduces the risk of challenges as they can testify to the testator’s state of mind during execution. 

4. Sign the Will: After writing and reviewing your Will, sign it in the presence of your witnesses, who must also sign, confirming that you acted freely and with understanding. 

5. Safekeeping: Keep the original Will in a secure location, such as a safe deposit box or with a trusted party like the executor. Let your executor or family members know where it is located or consider creating a duplicate signed copy for additional security. 

A clear and valid Will allows you to designate beneficiaries and specify assets distribution, ensuring your estate goes to those you intend to benefit. This can prevent disputes among family members. For instance, in Tan Kah Fatt [2023],⁷ the right of illegitimate children to inherit under the laws of intestacy was challenged. When the deceased died without a will, his estate was left to be distributed among his surviving spouse, children, parents, and brother. This led to a dispute over whether the daughter, being from an unregistered marriage (customary marriage), was entitled to inherit under the laws of intestacy. The Federal Court ultimately ruled the term ‘issue’ includes all descendants by blood lineage, not dependent on the matter of legitimacy of the descendant. Consequently, it was decided that the daughter was entitled to succeed and inherit.

Clearly defining how your assets should be distributed can help prevent family disputes, especially in complex family dynamics. Once a testator passes away, the executor will apply for grant of probate to validate the Will and distribute assets according to the testator’s wishes. Without a Will, the Distribution Act 1958 governs how your estate is divided, which may not align with your wishes. 

An outdated Will or unclear terms can cause issues. Review and update your Will at least every five years or after significant life changes such as marriage, divorce, or birth of a child. Estate planning is not a “set it and forget it” process. It is an ongoing process that ensures your wishes are up to date. Regular updates reduce surprises and prevent potential legal complications. For example, acquiring new properties requires updating your Will to ensure assets are titled correctly. 

Conclusion

Estate planning is more than just preserving wealth. It is about safeguarding relationships, values, and memories for the future. By prioritizing preventive strategies, you can leave your loved ones with something far more valuable than material assets: peace of mind, unity, and a sense of security.

Author: Siew Hui Yi

References

1. Section 5 of the Wills Act ↩︎
2. Section 4 of the Wills Act read together with section 2 of the Age of Majority Act 1971. ↩︎
3. Section 3 of the Wills Act ↩︎
4. Section 5(2) of the Wills Act ↩︎
5. Chin Jhin Thien & Anor v. Chin Huat Yean @ Chin Chun Yean & Anor [2020] 4 MLJ 581 ↩︎
6. Premavathy Balakrishnan v. Dr Premalatha Rama Govinda [2019] CLJU 1708 ↩︎
7. Tan Kah Fatt & Anor v. Tan Ying [2023] 2 CLJ 169 ↩︎

The views and opinions attributable to the author(s) of this publication are not to be imputed to the firm, Shan Chambers. The contents of this publication are intended for purposes of general information and academic discussion only. It should not be construed as legal advice or legal opinion on any fact or circumstance