Why is it necessary to write a will?

The Intestate Succession Ordinance 1960 governs the division of assets in Sabah in the event that a person passes away without leaving a will (Sabah No 1 of 1960). However, this Ordinance does not apply to the estates of Native or Muslims, and nothing in the Ordinance affects the division of an individual's estate under Native law and custom or Islam law.

The guidelines for how the intestate estate should be distributed are outlined in Section 7 of the Intestate Succession Law of 1960.

"RULE (1) If an intestate dies leaving a surviving spouse, no issue and no parent the spouse shall be entitled to the whole of the estate.

RULE (2) If an intestate dies leaving a surviving spouse and issue the spouse shall be entitled to one-third of the estate.” and so forth.  For eg.  If a husband dies without leaving a Will, his estate including immovable assets and movable assets will be distributed between the surviving spouse (1/3), and (2/3) to be distributed among the children (See: “Can an illegitimate child inherent his father’s estate” https://askalegaladvisor.blogspot.com/).

Leaving a Will and Last Testament is the best option for someone who may fulfil their desire to leave their fortune to the designated beneficiaries.

The other advantages of having a final Will and Testament drafted can be summed up as follows, in addition to the certainty over who would inherit the hard-earned riches and assets:

1. The Grant of Probate and Distribution Order application process will be faster  and less expensive.

After a testator passes away, it is the appointed Executor's responsibility to apply a Grant of Probate in the High Court so that they can uplift the testator's money or savings from their accounts with the banking institutions. The Executor may apply for re-sealing of the Grant of Probate in the foreign jurisdiction for any accounts or assets retained abroad.

Also, the Executor is required to apply for a Distribution Order in the High Court for the distribution of the immovable properties such as houses and lands.

In the absence of a Will, the next of kin must choose an administrator to act on behalf of the estate in order to file the Petition for Letters of Administration, and the other next of kins must renounce their rights to be named as the administrator.  For an intestate estate, the administrator is required to advertise the intention to distribute the intestate's estate by publishing a notice in a local daily giving three (3) months' notice to any interested party to make a claim against the estate, if any. Additionally, for accounts or assets held in a foreign jurisdiction, the Administrator may request that the sealed copy of the Grant of Letters of Administration be resealed in the foreign jurisdiction after obtaining it.

Legal expenses and filing costs for the Letters of Administration would be more when compared to the Petition for Grant of Probate because the process to apply for the Grant of Letters of Administration requires more time and applications. For the proper administration of the decedent's estate (for intestate estate only), the administrator must additionally obtain two (2) local sureties. However, if the petitioner can persuade the Court that there is sufficient and adequate cause and explanation for granting such exemption, then such requirement may be waived by filing a formal application with the Court.

2. The assets will be left to the intended recipients (bequeathed).

The Malaysian apex court has in Tan Kah Fatt & Anor v. Tan Ying [2023] (2 MLRA 525] ruled that illegitimate children are entitled to a share in their intestate parent's estate and decided that "the right to inherit lasted so long as there was established some genetic or blood lineage connection between the person claiming succession and the deceased."

In conclusion, the best way to give and leave the gifts, legacies, movable and immovable properties to the intended beneficiaries is by writing a Will. The following is a check list for drafting a Will.

 

NAME OF THE TESTATOR
RESIDENTIAL ADDRESS
EXECUTOR AND TRUSTEE
	Relationship :
	SUBSTITUTED EXECUTOR
	Relationship :
EXECUTOR’S ADDRESS
BENEFICIARIES

 

PARTICULARS OF ASSETS
(1) IMMOVABLE PROPERTY:-
Such as residential house, apartment, condominium, shoplot, land and etc
(2) MOVABLE PROPERTY-
(a) SAVING/CURRENT ACCOUNT(S)/ FIXED DEPOSIT ACCOUNT(S)
(b) VEHICLE
(c) Shares, stocks and etc
(d) interest/share in a company
(e) cash in hand, jewelry, safety box and etc