Who Can Be a Witness to a Will in Malaysia?

When making a Will, choosing the right witnesses may seem like a minor detail. In reality, the way a Will is signed and witnessed is an important part of ensuring that it is properly executed.

A common question is:

Who can act as a witness to my Will in Malaysia?

For non-Muslim Wills in Peninsular Malaysia, the relevant requirements are primarily governed by the Wills Act 1959.

How Many Witnesses Are Required?

Under section 5 of the Wills Act 1959, a Will must generally be signed by the person making the Will, known as the testator, in the presence of two or more witnesses who are present at the same time.

The witnesses must then sign the Will in the presence of the testator.

In practical terms, the usual signing arrangement is:

1. The testator and both witnesses are present together.
2. The testator signs the Will, or acknowledges his or her signature, in front of both witnesses.
3. Both witnesses then sign the Will in the presence of the testator.

The witnessing process should therefore not be treated as merely obtaining two signatures after the Will has already been signed.

Who Can Be a Witness?

The Wills Act 1959 does not prescribe a detailed list of persons who are qualified to act as witnesses.

As a matter of good practice, however, a witness should generally be:

• an adult;
• of sound mind;
• able to understand that he or she is witnessing the signing of a Will;
• capable of identifying the testator and confirming the circumstances in which the Will was signed; and
• preferably independent from the persons who stand to benefit under the Will.

The witnesses may potentially be called upon later to confirm how the Will was executed, particularly if questions arise during the probate process.

For that reason, it is preferable to choose witnesses who can be located and who are likely to be available if their evidence is subsequently required.

Can a Beneficiary Witness the Will?

This is where particular care is required.

A person who is receiving a gift or benefit under the Will should not act as a witness.

Section 9 of the Wills Act 1959 provides that where a person witnesses a Will and that person is given a beneficial gift under the Will, the gift to that witness will be null and void.

Section 9. Gifts to an attesting witness or to wife or husband of attesting witness to be void

If any person attests the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift or appointment of or affecting any property, other than and except charges and directions for the payment of any debt or debts, shall be thereby given or made, such device, legacy, estate, interest, gift or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, interest, gift of appointment mentioned in such will.

Importantly, this does not necessarily invalidate the entire Will.

Instead, the problem is generally with the gift intended for the witness.

Example

Suppose a father leaves:

• his house to his daughter; and
• his savings to his son.

If the daughter is also one of the witnesses to the Will, the gift of the house to her may be void even though the remainder of the Will may continue to operate.

This is why beneficiaries should ordinarily never be used as witnesses.

Can the Spouse of a Beneficiary Be a Witness?

Section 9 extends beyond the witness personally. A gift will also be affected where the husband or wife of an attesting witness is a beneficiary under the Will.

For example, assume a testator leaves RM200,000 to his son.

If the son’s wife acts as one of the witnesses to the Will, the gift to the son may be affected by section 9.

Accordingly, a sensible approach is to avoid using either:

• a beneficiary; or
• the spouse of a beneficiary

as a witness.

Can a Family Member Be a Witness?

Being related to the testator does not automatically prevent someone from acting as a witness.

For example, a sibling, cousin or other relative who receives no benefit under the Will may potentially act as a witness.

However, an independent witness is often preferable.

Using independent witnesses can reduce questions later about whether the witness had any personal interest in the estate or whether there were unusual circumstances surrounding the signing of the Will.

Can My Children Witness My Will?

Technically, the issue depends on whether the child is receiving any benefit under the Will and whether the person is otherwise an appropriate witness.

In most family Wills, however, children are also beneficiaries.

If a child is a beneficiary, that child should not witness the Will because the gift to him or her may be affected.

Even where a child is not a beneficiary, it is generally preferable to select independent adult witnesses instead.

Can My Executor Witness My Will?

Yes, being appointed as an executor by itself does not disqualify a person from acting as a witness.

Section 11 of the Wills Act 1959 expressly provides that a person is not incompetent to act as a witness merely because that person has been appointed as an executor.

Section 11. Executor not incompetent to be a witness

No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will or a witness to prove the validity or invalidity thereof.

There is, however, an important distinction.

An executor may also be a beneficiary.

For example, a person may appoint his wife as:

• executor of the Will; and
• beneficiary of his estate.

Although her position as executor does not prevent her from witnessing the Will, her position as a beneficiary creates a problem under section 9.

Accordingly, where an executor is also a beneficiary, that person should not be used as one of the witnesses.

Can a Lawyer Witness a Will?

Yes.

A lawyer may act as a witness to the execution of a Will, provided there is no legal impediment or conflict affecting that particular arrangement.

In professionally prepared Wills, it is common for independent persons at the law firm to witness the execution.

This can also assist in ensuring that the signing procedure is properly followed and that there is a record of the circumstances in which the Will was executed.

Do the Witnesses Need to Know What Is Written in the Will?

Generally, the role of the witnesses is to witness the execution of the Will, rather than to approve its contents.

They do not ordinarily need to know:

• how much the testator owns;
• who the beneficiaries are;
• what each beneficiary will receive; or
• the reasons behind the testator’s decisions.

Their principal role is to witness the signing or acknowledgement of the Will.

Why Are Independent Witnesses Preferable?

Even where a person may technically qualify to act as a witness, choosing independent witnesses can help avoid unnecessary complications.

A well-chosen witness should ideally have no financial interest in the estate.

This becomes particularly important if, after the testator’s death, someone alleges that:

• the testator did not sign the Will;
• the Will was signed improperly;
• the testator did not understand what he or she was signing;
• the testator lacked mental capacity; or
• the testator was pressured or unduly influenced.

A witness who was present during the execution may become important evidence of what happened.

What About an Elderly or Seriously Ill Testator?

Additional care may be advisable where the person making the Will is:

• elderly;
• seriously ill;
• hospitalised;
• suffering from an illness affecting memory or cognition; or
• potentially vulnerable to allegations of undue influence.

Depending on the circumstances, additional evidence regarding the testator’s mental capacity may be appropriate.

For example, a medical practitioner may sometimes be involved or preferred where there could later be questions concerning testamentary capacity.

The circumstances should therefore be considered carefully rather than simply obtaining two convenient signatures.

What Happens If a Beneficiary Has Already Witnessed the Will?

Do not assume that the entire Will is automatically invalid.

Under section 9, the primary consequence is generally that the gift to the witness, or to the witness’s spouse, may be void, rather than the whole Will being invalidated.

However, the actual consequences will depend on the wording of the Will and the surrounding circumstances.

If a Will has already been signed using a beneficiary or a beneficiary’s spouse as a witness, legal advice should be obtained on whether the Will should be re-executed or replaced.

A Simple Rule When Choosing Witnesses

For most straightforward Wills, the safest practical approach is to choose two independent adults who are neither beneficiaries nor spouses of beneficiaries.

Although certain other persons may legally be capable of acting as witnesses, using independent witnesses reduces the risk of unintended consequences.

The execution of a Will is just as important as its contents. A carefully drafted Will may still create difficulties if the required signing formalities are not properly observed.

Need Assistance With Preparing a Will?

A properly prepared Will allows you to record how you wish your estate to be administered and distributed after your death while taking into account your family circumstances, assets and intended beneficiaries.

Legal advice can also help ensure that the Will is properly drafted and executed in accordance with the applicable requirements.

This article provides general information only and does not constitute legal advice. The Wills Act 1959 applies to non-Muslim Wills in Peninsular Malaysia. Different laws and considerations may apply in other circumstances.

Read more:

Importance of Will Writing in Malaysia | Why You Should Have a Will

Executor of a Will in Malaysia: What Does an Executor Actually Do?

What Can I Include in My Last Will and Testament in Malaysia?

What Happens If You Die Without a Will in Malaysia? | Intestacy Guide