LAW OF SUCCESSION

TUTORIAL QUESTIONS

1) Explain the difference between total intestacy and partial intestacy. When
may partial intestacy arise?
2) Briefly explain the advantages of dying testate.
3) What is a will? Define the term ‘will’.
4) What are the essential characteristics of a will?
5) What type of property can a person dispose of by will?
6) What are mutual wills?
7) Briefly explain Section 5 of the Wills Act 1959.

1) Explain the difference between total intestacy and partial intestacy. When may partial
intestacy arise?

Total intestacy occurs where a person dies leaving no valid will.

Partial intestacy arises when a person dies leaving a will which does not expressly state what he
intends his executors to do with any property he owns.

A partial intestacy happens where an individual has left a will but, for one reason or another, the
will does not fully deal with the whole of their estate.

Partial intestacy occurs when someone dies leaving a valid will, but the will only disposes of part
of their estate.

2) Briefly explain the advantages of dying testate.

- Able to choose a reliable person to be the executors and trustee of will.

- Able to control over the manner in which his property will be distributed

 - Testator has control over who will be the recipients of his generosity. He can choose not to
give anything to a particular daughter or son.
 - can choose how much of his assets he wants to give to his family members, relatives,
friends etc.  
- The provisions of the DA are strict, especially in the case of family members. For
example the word “child” is defined in the DA as the legitimate child or an adopted child
who has been adopted under the provisions of the Adoption Act,1952.    Any other child
will be excluded by the DA, but not so under a will.
- The will makes distribution of landed property easy. Otherwise there will be disputes
over the landed properties among the children and between the children and the surviving
spouse.

(notes)

3) What is a will? Define the term ‘will’.

A will, sometimes called a “last will and testament,” is a document that states your final wishes.
It is read by a county court after your death, and the court makes sure that your final wishes are
carried out.

Definition: Will, also called testament, legal means by which an owner of property disposes of

his assets in the event of his death.

4) What are the essential characteristics of a will?

The formal requirements for making a valid will are found in the Wills Act, 1959 and the
formalities must be strictly observed.

            -    The will must be in writing.

-    The Testator must be of the age of majority .This means that the Testator must be 18
years and above.

-    The Testator must be of sound mind when he makes the will.

-     The Testator must have property to dispose off either at the time of making the will
or which property the Testator may become entitled to subsequent to the execution of the
will.
 -     The will must be signed at the foot or end of the will by the Testator or by some other
person in his presence and by his direction.Therefore any provision stated below the
signature is invalid.

-     The Testator’s signature must be made or acknowledged by the Testator in the

presence of 2 or more witnesses present at the same time.

-      The witnesses shall subscribe the will in the presence of the Testator.

-      Publication of the Will is not necessary.

-     Beneficiaries and their spouses cannot be witnesses to the will. In such an event, the
benefits due to the beneficiary or his/her spouse will become utterly null and  void. But
an Executor can be a witness.

-     Any alterations, defacement, cancellation or scratches shall not be valid unless
initialed by the Testator and attested by the witnesses. Therefore do not make any
alterations, cancellations or scratches. Make as many drafts as needed until you are
satisfied. Then destroy the drafts.

5) What type of property can a person dispose of by will?

All kinds of properties can be disposed off by a will. Properties can be categorized under the
following categories:

-    movable/personal (such as money, jewellery, cars, shares, furniture, paintings, sculptures,

stamp collection, books, clothes, pens, pots and pans and all other household items and other
chattels );

-     immovable/real (such as houses and land); and

-     intellectual property (copyright, patents, etc)

-     money kept in the EPF account will not be governed by the provisions of the will. The
money will be distributed to the persons nominated as beneficiaries in the  EPF nomination form.
Therefore ensure that you have changed the beneficiaries to your EPF money NOW!!!

6) What are mutual wills?

Wills that are made by two or more persons agreeing to make wills in similar terms and that the
survivor will be bound to dispose of his or her estate in a specified manner.

Mutual will is a type of will, usually executed by a married or committed couple, that is mutually
binding. After one party dies, the remaining party is bound by the terms of the mutual will.
(commonly between husband and wide)

7) Briefly explain Section 5 of the Wills Act 1959.

In Malaysia, a person writing a will must comply with the formalities stated in Section 5 of the
Wills Act 1959, summarized as follows, in order for the will to be valid and effective:-

(a) the will maker must be at least 18 years old;

(b) he/she must be of sound mind;

(c) the will must be in writing;

(d) signed by the will maker in the presence of at least 2 witnesses; and

(e) the 2 witnesses must then sign in the presence of each other and the will maker.

It must be remembered that the witnesses or the witnesses' spouse must not be the beneficiaries
under the will because if this is so, the gift to the beneficiaries under the will shall be void
against them.

However, an executor is not prohibited to be a beneficiary under the will.

A will does not need to be stamped in order for it to be valid. We hope this common
misconception can be dispelled once and for all here.

In the event that you need to vary the contents of the will due to the purchase of new property,
divorce, remarried, and so on, you can either write a new will or to execute a codicil. Do note
that unless there is “In Contemplation of Marriage” clause in your will, your previous will
automatically be revoked subsequent to your marriage.

The formalities to execute a valid codicil shall be the same as in executing a will as discussed
above, i.e. in writing, signed and attested by 2 witnesses.
It is important to note that a will can be challenged in either of the following circumstances:-

(a) the content or wording was written ambiguously,

(b) the will maker lack testamentary capacity, or

(c) the will be written under suspicious circumstances.

If a will was successfully challenged by an interested party, the court may declare it as invalid. In
that event, the disposition of the estate will have to be distributed in accordance with the
Distribution Act 1958.

Mode of execution

5. (1) No will shall be valid unless it is in writing and executed in manner hereinafter mentioned.

(2) Every will shall be signed at the foot or end thereof by the testator or by some other person in
his presence and by his direction; such signature shall be made or acknowledged by the testator
as the signature to his will in the presence of two or more witnesses present at the same time, and
such witnesses shall subscribe the will in the presence of the testator, but no form of attestation
shall be necessary:

Provided that every will shall, as far only as regards the position of the signature of the testator,
or of the person signing for him as aforesaid, be deemed to be valid under this section if the
signature shall be so placed at or after, or following, or under, or beside, Wills 7

or opposite to the end of the will, that it shall be apparent on the face of the will that the testator
intended to give effect by such his signature to the writing signed as his will; and no such will
shall be affected by the circumstance--

(a) that the signature shall not follow or be immediately after the foot or end of the will;

(b) that a blank space shall intervene between the concluding word of the will and the signature;

(c) that the signature shall be placed among the words of the testimonium clause or of the clause
of attestation, or shall follow or be after or under the clause of attestation, either with or without
a blank space intervening, or shall follow or be after, or under, or beside the names or one of the
names of the subscribing witnesses;

(d) that the signature shall be on a side or page or other portion of the paper or papers containing
the will whereon no clause or paragraph or disposing part of the will shall be written above the
signature; or
(e) that there shall appear to be sufficient space on or at the bottom of the preceding side or page
or other portion of the same paper on which the will is written to contain the signature,

and the enumeration of the above circumstances shall not restrict the generality of this proviso;
but no signature shall be operative to give effect to any disposition or direction which is
underneath or which follows it, nor shall it give effect to any disposition or direction inserted
after the signature shall be made. Execution of appointment by will