COVID-19 Estate Planning Series: Should I make a Will?

The current COVID-19 situation has undoubtedly raised many concerns of the near future for many of us. Based on the enquiries and queries I have received during this Movement Control Order (“MCO”) period, I can safely conclude that many of us are starting to think about our mortality and putting our affairs in order while we can.  

This seems to be a natural reaction or response around the world. In the UK, the Ministry of Justice announced recently that it could temporarily relax rules on will writing in England and Wales following an increase in the number of people making and updating their wills while in isolation [1].

Quite like Malaysia, wills in England and Wales have to be witnessed by 2 witnesses. The Ministry of Justice in the UK is looking into relaxing this rule and to consider the possibility of accepting other alternatives, like video witnessing. While it will be interesting to see how the Ministry of Justice in the UK decides in the next couple of weeks, there has been no similar news in Malaysia with regard to will writing. 

So, following from the stream of queries I’ve received over the past 2 weeks, I gather that some of us are starting to wonder if we should make a will. The answer to this is, in my opinion, dependent on a few considerations which I will discuss below. This discussion applies only in the context of non-Muslim estates in West Malaysia. 

1. Do you have anything to give? 

In practical terms, it makes more sense to have a will if you have more assets than debts which you can give upon your death. To put it very simply, if you have nothing to give, then spending time and money on making a will would probably not be practical for you.

If you do have assets which could be used to pay off your debts upon your death and leave a surplus to be distributed amongst the people you wish to leave something for, then the straight forward answer is, yes, you should probably consider making a will. 

The remainder of this piece will be based on the assumption that, in the first place, you have assets to leave behind upon your death.

2. Do you have a specific intention or a specific person you wish to provide for after your death? 

You should definitely make a will if you wish for certain wishes or intentions to be carried out upon your death and in particular, if there is a person or persons who you particularly wish to provide for after your death. 

A few common examples of such wishes or intentions where making a will would strongly be advised are: 

• If you wish to disinherit your spouse or a son or daughter; 
• If you wish to leave a gift to a friend or charitable organisation; 
• If you wish to leave your children with specific properties or monies in different proportions; 
• If you wish to provide for a life partner who you are not married to; 
• If you are unmarried but have substantial assets which you wish to leave to specific persons other than your parents or siblings; 
• If you have a more complex family structure (e.g. a second family and children from another partner other than your lawful spouse).

This list is not an exhaustive one and is intended to be a general guide only.  

It is important to understand that should you die without leaving a will (this is called dying intestate), the Distribution Act, 1958 (the “1958 Act”) will determine who should inherit your estate. They will usually be your immediate family members (e.g. your lawful spouse, lawful children or lawfully adopted children, parents or siblings). In circumstances where you die without having any surviving immediate family members, the 1958 Act provides for the right of your grandparents, aunts and uncles, great grandparents or great grandaunts and great granduncles to inherit your estate[2]. Contrary to a common misconception many people have, your estate does not automatically fall into the hands of the government if you die without leaving a will. 

One limitation which the 1958 Act has (which I have written on previously) is that it only recognises “lawful children”. In simple terms, this means that only children who are born to a lawfully married couple or are lawfully adopted are eligible to inherit from their parents’ estates. Our laws of inheritance disentitle a child born out of wedlock from inheriting from a deceased parent’s estate. Even a positive match DNA test will not help a child born out of wedlock in such circumstances. (There are limited exceptions which will have to be the subject of a different discussion).

If any of the examples above apply to you, you should seriously start considering making a will. 

3. If you have a net worth exceeding RM2 million which includes immovable properties 

What if you are not concerned with your estate being inherited in accordance with the 1958 Act? Let’s take the example of the case of a married man with children from the marriage dying without a will. If he is survived by his lawful wife and children only, the 1958 Act provides that his wife will inherit 1/3 of his estate while his children will inherit the other 2/3 of his estate equally. In such circumstances, it is easy for many to accept that this position is fair and ideal. Many would think that this justifies not having a will. 

If you are thinking along these lines, you may wish to reconsider your position if you will be leaving an estate valued in the excess of RM2 million and it includes immovable properties. 

In the case of intestate estates, the High Court’s jurisdiction is for estates which are worth more than RM2 million. Obtaining a Grant of Letters of Administration could be a little trickier than obtaining a Grant of Probate in these circumstances. 

For starters, in the example above, the wife of the deceased married man applying for a Grant of Letters of Administration will have to, amongst other things, secure 2 sureties to provide a bond in the amount of the value of the estate, without deduction of any debts due by the deceased married man, other than debts secured by mortgage or charge[3]. Whilst she may be entitled to apply for a dispensation of sureties from the Court, this is entirely in Court’s discretion and she may have to incur additional legal fees to instruct her lawyers to file such an application. In such circumstances, unless you have close friends or relatives who have substantial assets and are willing to be sureties for your estate, not having a will may cause unnecessary difficulties for your loved ones. This issue does not arise in cases where the man dies leaving a will. 

The other reason to seriously consider making a will if your estate is made up of immovable properties and your whole estate is worth more than RM2 million is that a transfer and/or sale of any immovable properties require permission from the Court. This includes a transfer to a lawful beneficiary under the 1958 Act.[4] There are no such requirements if you died leaving a will.

In such circumstances, the failure of the deceased to make a will had resulted in more time and expenses being incurred in administering and distributing his estate to the beneficiaries. 

Conclusion

Whilst not everyone needs to make a will, many of us may find that we can help ease the pain of our loved ones in our demise if we have a well-drafted will in place to assist them in such trying times. If we cannot be of help physically, then maybe we can at least not make life harder than it already is for them. 

In the next part of this Series, I will discuss some key tips and principles in will drafting which may be helpful to some of you. Stay tuned! In the meantime, stay home and stay safe! 

Should you have any questions or topics which you would like to know more above, do drop me an email at cly@thomasphilip.com.my

[1] https://www.theguardian.com/money/2020/mar/31/uk-write-will-covid-19-crisis-witnesses

[2] Section 6 of the Distribution Act, 1958

[3] Section 35(2) of the Probate and Administration Act, 1959

[4] Section 60 of the Probate and Administration Act, 1959