Topic 1: TYPES OF WILL

• INTRODUCTION
• TYPES OF WILL
• Valid Will
• Noncupative Will
• Holographic Will
• Privileged Will
• Codicil
• Other Documents
• Mutual Wills
• Living Will and Euthanasia
• CONCLUSION
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• REFERENCE 2
INTRODUCTION
• When a person dies, someone has to deal with their affairs. This is called ‘administering

the estate’.

• If the deceased leaves a Will, it will usually name one or more people to act as the

executors of the Will- that is, to obtain a grant of probate and administer their estate.

• A grant of probate is an official document which the executors may need to administer the

estate. It is issued by a section of the court known as the Probate Registry through an

application made to the High Court of Malaya via Originating Summons .

• If there is no Will (known as dying ‘intestate’) the process is more complicated.

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Types of Will
A valid will
• Law that govern the validity and effect of Wills in West Malaysia is the

Wills Act 1959 except that the Act does not apply to the Wills of

persons professing the religion of Islam whose testamentary powers

are governed by Islamic law.

• A Will does not come into effect until after the person’s death. Up until

the time of death it is not enforceable and can be changed at any time.

• It is ambulatory (not permanent) and it is subject to revocation or

alteration until the death of testator.

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Noncupative will
• It is an oral Will. It may be dictated by the testator during his or her
illness before a specific number of witnesses and later reduced into
writing. It represents a limited exception to the general rule that a Will
be in writing.

• Noncupative Wills are also referred to as “Deathbed” Wills, since they

are used when a person is faced with imminent death; usually from a
terminal illness, during war, or before leaving for armed conflict. 

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Holographic
• A Holographic Will is a handwritten Will that is not
witnessed. It must be signed, dated and written
entirely in the Testator’s handwriting.

• It is validated without witnesses because of the fact

that the will is entirely in the testator’s writing. The
risk of fraud that the formalities are designed to
prevent is reduced.
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 • Normally, a ‘will’ must be signed by witnesses attesting to the validity
of the testator’s signature and intent, but in many jurisdictions,
holographic will that have not been witnessed are treated equally to
witnessed ‘wills’ and need only to meet minimal requirements in order
to be probated i.e. there must be evidence that the testator actually
created the ‘will’, which can be proved through the use of witnesses,
handwriting experts, or other methods; the testator must have had the
intellectual capacity to write the ‘will’, although there is a presumption
that a testator had such capacity unless there is evidence to the
contrary; and the testator must be expressing a wish to direct the
distribution of his estate to beneficiaries.
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Privileged Will
DEFINITION
• A ‘will’ by a member of the armed forces in Malaysia
who is in actual service may be made either in writing
or by word of mouth. Such soldier, airman and sailor
may by such privileged will dispose of his property or
of the guardianship, custody and tuition of a child or
may exercise a power of appointment exercisable by a
‘will’.

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 • There is no need to prove that he was making a ‘will’
or that he was entitled to. It is sufficient if the ‘will’
manifests the intentions of the testator to be acted
upon as being an effective ‘will’. (See sec 26(1) of the
Wills Act 1959)

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 • A declaration or disposition by such serviceman would
be valid, notwithstanding it was executed in the
manner intended by the testator or that he had
intended subsequently to execute a formal will to give
effect to his testamentary dispositions, unless it
appears that the failure to execute such declaration
was due to abandonment of his testamentary
intentions expressed in such declaration

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 • The usual rules of capacity such as age of majority,
the mode of execution requiring proper attestation by
the testator, and power of appointment exercisable by
will, do not apply to privileged will.
• It is not necessary for a privileged will to be signed by
the testator
• It shall be null and void after the expiration of one
month after the testator being still alive has ceased to
be entitled to make a privileged will

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 CODICIL
Definition

A Codicil is an instrument executed by a testator for adding to, altering or

confirming a ‘will’ previously made by him. It becomes part of the ‘will’, and the

formalities required are similar to those for executing a normal valid ‘will’.


The effect of a Codicil is to bring the ‘will’ up to date with the Codicil, and to make

the same dispositions of the testator’s estate as if the testator had at that date

made a new ‘will’, with the original dispositions as altered by the Codicil.


All in all, a Codicil is a document that is executed by a testator who had previously

made his Will, to modify, delete, qualify, or revoke provisions contained in it.

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 Other documents

• A Will can refer to other documents and these can be included as part

of the Will, though they have not had the formalities of a Will such as

signature of the testator and the signatures of the two attesting

witnesses.

• The documents will be treated as part of the Will if they are referred

to in the Will and if the reference to them would be sufficient to

identify the particular documents and such documents were in

existence at the time of making the Will and do not include

documents that would come into existence later.

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Mutual Will
• Refers to Wills made as the result of an agreement between persons

to create irrevocable interest in favour of ascertainable beneficiaries.

• Where the testator revokes his Will after the death of the other

party, equity will enforce the interests created by the agreement.

• Mutual Wills contain an agreement that neither Testator will make

any changes to their Will after the death of the other.

• Therefore, the surviving Mutual Testator is bound by the original

arrangement and cannot change his/her Will.

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 • People choose this type of Will sometimes to create
some protections.

• exp:
• If a wife has children from a previous marriage, she want to
ensure that parts of the estate are left to her children after
the death of both Mutual Testators. Without the mutually
binding nature of Mutual Wills, there would be nothing to
stop her husband from changing his Will after her death and
leaving her children out of the new Will.
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 Living Will and Euthanasia
•A ‘living will’ is a legal document which lets a person decide whether or not to be kept on

artificial life support plus any other type of aggressive medical treatment to keep him or her

alive.

•A ‘living will’ functions in the event of serious accidents or sickness, leaving the person alive

but incapable of making further decision on his or her medical care.

•In other words, a ‘living will’ allows persons to order their doctors to pull the ‘plug’ instead of

prolonging their lives by artificial means in case they become unconscious or incapacitated.

•It is important to note that in Malaysia, euthanasia or “mercy-killing” is not allowed. There is

no special provision regarding euthanasia in the Malaysian Penal Code.

•A so-called ‘living will’ takes effect when the testator is technically alive; it concerns not living

but being allowed to die. It is to be used while the signer of the ‘will’ still lives.

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 • It is vital to note that the document gives no authority to any
person to act according to its terms. It requests the decision of
a sympathetic man who knows when to allow a person to die,
when through pain, suffering or mental decay, the person no
longer possesses human dignity or the will to live. The
testator’s family or closest friend shows the document to the
physician at the appropriate time.
• A ‘living will’ must not be witnessed by any member of the
testator’s family or relatives or by any person who might
benefit under the testator’s ‘will’ or as a result of his dying
without making any other ‘will’.
• All in all, Malaysian law does not recognise ‘living wills’.
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Other types of will
Handwritten Wills
• If you haven't taken the time to draw up a formal Will, the next best
alternative is a handwritten Will stating your intentions. Even though they
may not meet the guidelines of a standard Will, most states do allow your
wishes to be considered. It's usually easy to interpret the writer's intent. If
the Will is in your handwriting and can be verified, it's admissible in a court
of law. These are usually short and simple.

• Two requirements are necessary for this type of Will to be considered valid:
a mental state (of sound mind) and the intent to make a Will.

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Oral Wills
• An Oral Will is spoken/oral, rather than written. This type of Will is
usually made before witnesses. The Testator will say out loud to
someone else how he/she wants his/her property and assets to be
distributed after death

• Oral Wills have less authority than handwritten Wills. First, they're
only recognized in certain states. Second, they usually require a
presence of fear of death. These only apply to personal property
so there may be other considerations not taken into account.
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CONCLUSION
• In conclusion, it can be seen that there are various types of Will.
• Thus, whoever is involved in administering an estate need to have a
good knowledge about the relevant types of Will.

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