A will is more than a list of who should receive your assets.
A properly prepared will should identify the testator, appoint suitable persons to administer the estate, set out the intended gifts clearly and comply with the execution requirements under Malaysian law.
Table of Contents
Step 1: Identify Your Assets
Prepare an organised list of assets, including property, bank accounts, investments, business interests, vehicles, significant personal belongings and foreign assets.
For real property, record the address, title details where available, share owned and whether it is subject to financing.
Step 2: Check Ownership
Not every asset a person uses or controls necessarily belongs personally to that person.
For example, company-owned property belongs to the company. Jointly owned assets, trust property and nominated benefits may also require separate consideration.
Step 3: Choose Beneficiaries
Decide who should benefit and consider what happens if a beneficiary dies before you.
Step 4: Decide on Specific Gifts
If particular assets are to go to particular beneficiaries, describe them carefully.
Step 5: Include a Residuary Clause
The residue is what remains after specific gifts, liabilities, expenses and other testamentary provisions.
A residuary clause can capture later-acquired or omitted estate assets and reduce the risk of partial intestacy.
Step 6: Appoint an Executor
Choose a suitable executor and consider appointing substitutes in case the first-choice executor cannot act.
Step 7: Consider Trustees
Trustees may need to hold and manage assets for minor or young beneficiaries or under other continuing testamentary arrangements.
Step 8: Consider Guardians for Minor Children
A guardianship appointment should be considered together with the applicable guardianship law, the other surviving parent and the circumstances of the family.
Step 9: Decide the Age of Entitlement
A will can postpone a young beneficiary’s absolute entitlement to a specified age and give trustees powers to use funds earlier for maintenance, education, medical expenses and welfare.
Step 10: Draft the Will Clearly
The will should clearly address, where relevant, revocation of earlier wills, executors, trustees, guardians, specific gifts, residue, substitute beneficiaries and administrative powers.
Step 11: Choose Appropriate Witnesses
Under the Wills Act 1959, the testator’s signature must be made in the presence of two or more witnesses present at the same time.
The witnesses must then attest and subscribe the will in the testator’s presence.
Step 12: Sign Properly
Common mistakes include witnesses signing at different times, using an interested witness, leaving pages incomplete, or making informal handwritten changes after execution.
Step 13: Store the Original Safely
Probate will normally require the original will. The executor or a trusted person should know how it can be located when required.
Step 14: Review the Will
Review after major events such as marriage, divorce, birth of children, death of a beneficiary or executor, acquisition or disposal of significant property, migration or acquisition of foreign assets.
Common Will-Writing Mistakes
No Residuary Clause
This can leave omitted or later-acquired assets undisposed of.
Giving Away Property You Do Not Own
A person cannot simply dispose by will of an asset owned by a company or another individual.
No Substitute Beneficiaries
The will should ideally deal with what happens if a principal beneficiary dies first.
Inappropriate Witnesses
Avoid using beneficiaries casually as witnesses because of the statutory consequences that can affect gifts to attesting witnesses or their spouses.
Ignoring Cross-Border Assets
Foreign assets may involve the laws and probate procedures of another jurisdiction.
Do You Need a Lawyer?
A person may prepare their own will, but legal drafting is particularly useful where the estate involves multiple properties, business interests, minor children, blended families, foreign assets or complex distribution instructions.
Frequently Asked Questions
Must I list every bank account?
Not necessarily. A properly drafted residuary clause can cover estate assets even if every item is not individually listed, although asset information remains useful for planning and administration.
Can I change my will later?
Yes, provided the change is made through a legally effective testamentary method and the testator has capacity.
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Read: Why Is Will Writing Important in Malaysia?
This article is provided for general informational purposes only and does not constitute legal advice.