Avoiding Partial Intestacy

We draw up Wills to let people know how we want our belongings, assets and properties distributed after we die. But what happens if we miss something out?

It is said that a person is only testate (meaning, to have died leaving a will) in so far as they have expressed themselves in their will. If one dies without a Will, he or she will be said to have died intestate. But if a person dies leaving a Will which does not expressly state what he intends his executors to do with any property he owns, he will be said to have died partially intestate.

There can be major implications to this. It means that a person’s wishes, no matter how obviously he has made them or how many people he has told before his demise, generally do not matter if there is nothing in the Will to suggest what his intentions are.

What happens if you die intestate or partially intestate?

If a deceased person has not provided instructions for some of his/her assets and properties, then the distribution of such assets or properties will have to be made in accordance with the Distribution Act, 1958. The 1958 Act provides for the distribution of assets differently depending on the heirs or lawful family members the deceased left behind.

For example, if a deceased person leaves behind a spouse but no children, grandchildren or parents, the surviving spouse will inherit all of the deceased’s remaining assets. If someone dies and leaves behind a spouse, children and parents, then the spouse will get a quarter of the remaining assets, the children will get half and the parents will get the remaining quarter. Other situations are provided for in Section 4 of the Distribution Act 1958.

Can the Court be of help?

The Court does apply certain principles in interpreting Wills that could assist in avoiding a case of partial intestacy. This is usually in cases where the Will is not worded clearly or where certain parts of the will are ambiguous.

For example, the High Court in the case of Tay Seck Loong @ Tay Seck Long & Ors v Teh Chor Chen & Ors [2005] 7 MLJ 612 held the Court will assume that if you made a Will, you did not intend to die intestate. The Court will therefore try as far as possible to read the Will such that there is no intestacy or minimal intestacy.

The Federal Court in Hsu Yik Choi v Hsu Yaw Tang & Anor [1982] 2 MLJ 227 has also said that the Court’s role in interpreting a will is to enable your expressed intentions. The Court reads the Will in light of the circumstances in which the will was made, but it can still only give effect to your intentions as far as they are written down in the Will.

However, the Court in reading a person’s Will also takes the plain and obvious meaning of his or her words (see the case of Tan Sri Dr M Mahadevan v Dr Jeyalakshmi Ratnavale & Ors [2017] 6 CLJ 49).

Therefore, if your Will does not provide for the distribution of a particular property and you do not have any words in your Will that could be interpreted to be a residuary clause, the Court cannot assist in avoiding a case of partial intestacy. The Court cannot find an intention in the Will if it is not there.

The Court cannot find an intention in the Will if it is not there.

How can I avoid this?

To avoid intestacy and to prevent assets from being distributed according to the 1958 Act, solicitors commonly advise including a ‘residuary clause’ into Wills. These are blanket clauses that deal with the residue of your estate. In other words, this clause will cover all of the assets you do not specifically name and provide instructions as to the distribution or inheritance of the same in your Will.

For example, you may provide that the residue of your estate will go to a charitable organisation or to a specific person. You may also instruct that your residue be sold off and that the proceeds are divided according to whatever formula you choose and to whoever you intend to be the beneficiaries of the same.

Another way to avoid the problems arising from intestacy is to transfer some of your properties and assets to your intended beneficiaries while you are still alive. While this is not something you may want to do with all of your properties (for example, your current place of residence), this reduces the number of assets you or your solicitors will have to account for when drafting your will thereby reducing the risk of leaving any assets for which you have a very specific intention for.

Making a complete transfer of these assets also aids you in avoiding situations of ambiguity or confusion after your death. Should your will be drafted in an unclear manner, there may be conflict (or even litigation) over how to divide your assets. On the other hand, assets that have been given away during your lifetime will not be subject to the same confusion.

However, the transfer of assets during your lifetimes to certain beneficiaries may attract tax implications which you and your intended beneficiaries may wish to avoid. It is best therefore to seek legal advice with regard to estate planning to figure out the best solution for your intentions in distributing your estate.

Ultimately, your Will should also be written as simply and clearly as possible to avoid a situation of partial intestacy or challenges by those who were left out of your Will or any of your beneficiaries