Wills Act 1959

• S. 2(1)
• “will”
means a declaration intended to have legal effect of the
intentions of a testator with respect to his property or other
matters which he desires to be carried into effect after his
death and includes a testament, a codicil and an
appointment by will or by writing in the nature of a will in
exercise of a power and also a disposition by will or
testament of the guardianship, custody and tuition of any
child.
Application of Wills Act 1959
• S. 1
• Apply only to the States of Peninsular Malaysia.

• S. 2
• Only apply to Non-Muslims.
Probate and Administration Act 1959
• S. 2
• “will” includes any codicil or other testamentary document
and a privileged will valid under section 26 of the Wills Act
1959 [Act 346], or the corresponding written law in force in
Sabah or Sarawak.
Meaning of will in Islam

• The Arabic word for a will is wasiyyah.

• It means a gratuitious gift of property by its owner to

another, contingent on the giver’s death, which the gift
takes effect on the giver’s death.
WilsAct 1959
S. 2(1)

“declaration”

• A statement that is spoken or written.

• Example:
• “I hereby declare that this is my last will and testament…
I declare that I am of legal age to make this will and of
sound mind and that this last will and testament expresses
my wishes without undue influence or duress.”
“intention”
• Perrin v Morgan [1943] AC 339
• Fact: A testatrix, by her will drawn without legal
assistance, directed that "all moneys of which I die
possessed of shall be shared by my nephews and
nieces now living”.

• “My Lords, I take it to be the cardinal rule of construction

that a Will should be so construed as to give effect to the
intention of the testator, such intention being gathered
from the language of the Will read in the light of the
circumstances in which the Will was made.”
“property”
• S. 2(1) of Wills Act 1959
• “property” includes lands, leases, rents and hereditaments
corporeal, incorporeal or personal and any individual
shares thereof and any estate, right or interest therein or
in relation thereto, moneys, shares of Government and
other funds, securities for money, charges, debts, choses
in action, rights, credits, goods and all other property
whatsoever which devolves upon the executor or
administrator and any share or interest therein and any
contingent, executory or other future interest
Property Disposable By Will
• Real property: Land and Buildings
• Personal property: cash, bank balances, shares, vehicles,
jewellery, books, etc.
• Life Assurance Policies
• EPF
• Trust Property
• Intellectual property: copyrights, patents, designs.
• Future benefit
• Foreign property
• S 3 of Wills Act 1959
• Except as hereinafter provided, every person of sound
mind may devise, bequeath or dispose of by his will,
executed in manner hereinafter required, all property
which he owns or to which he is entitled either at law or in
equity at the time of his death notwithstanding that he
may have become entitled to the same subsequently to
the execution of the will.
• S 2 of Probate and Administration Act 1959
• “property” includes a thing in action and any interest in
movable or immovable property
Ng Sook Hooi v Ng Kim Seng
[2001] MLJU 368

• “the right to sue, being a chose in action, is property within

that definition.”
“Speaks from death”
• S. 18 of Wills Act 1959
• Every will shall be construed, with reference to the
property comprised in it, to speak and take effect as if it
had been executed immediately before the death of the
testator, unless a contrary intention shall appear by the
will.
“Testament”
• Halsbury’s Laws of Malaysia 2007 Reissue:
• Testament = Will
• used interchangeably in our law.

“Codicil”
• Supplementary will
• Example of a codicil :
“This is my codicil and is supplementary to my Will dated
the 10th of June 1997.Paragraph 5 of my Will is revoked
and replaced by the following paragraph..”
“by writing”
• S. 5(1) of Wills Act 1959

• No will shall be valid unless it is in writing…

• Including handwritten, typewritten or printed words.

Exception: S. 26 of Wills Act 1959

Privileged wills of soldiers, airmen and sailors

(2) For the purposes of this section a privileged will means any
declaration or disposition, oral or in writing, made by or at the
directions of the testator which manifests the intentions of the
testator which he desires to be carried or to the guardianship,
custody and tuition of a child or to the exercise of a power of
appointment.
“guardianship, custody and tuition of any child”

• S. 7 of Guardianship of Infants Act 1961

• A parent of an infant has the statutory power to appoint
any person to be guardian of the infant after that parent’s
death.

• Example: Guardianship Provision

“If, at my death, I have any child or children under age 18
and such child or children does not have a living parent,
and is cute, I nominate Loh Sook Fun to serve as the legal
guardian or guardians of such child or children.”
“child”
• Generally means children born in wedlock
Mode of execution
• S. 5(2) of Wills Act 1959

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…
References
• Statutes
• Guardianship of Infants Act 1961
• Probate and Administration Act 1959
• Wills Act 1959

• Books
• Halsbury’s Laws of Malaysia 2007 Reissue
• Mahinder Singh Sidhu. 2005. The Law of Wills, Probate
Administration and Succession in Malaysia and
Singapore. Petaling Jaya: International Law Book
Services.