Most people know they should have a will. Far fewer actually have one. The reasons are familiar \u2014 it feels morbid, there never seems to be a good time, the estate is not large enough to bother, the family will sort it out. None of these reasons hold up under scrutiny, and the consequences of dying without a valid will can be significantly more complicated and more costly than the process of making one.<\/p>\n\n\n\n
This article explains what a will is, who should have one, what the legal requirements are in Malaysia, and what happens when someone dies without leaving one.<\/p>\n\n\n\n
A will \u2014 formally called a last will and testament \u2014 is a legal document in which a person (the testator) sets out their wishes regarding the distribution of their estate after death. A will can address the distribution of assets, the appointment of an executor (the person responsible for administering the estate), the appointment of guardians for minor children, and other matters the testator wishes to record.<\/p>\n\n\n\n
A will only takes effect upon the testator’s death. Until then, it can be amended or revoked at any time, provided the testator has the requisite mental capacity.<\/p>\n\n\n\n
The law governing wills in Sabah is the Wills Ordinance (Sabah Cap. 158)<\/strong>. This is a Sabah-specific instrument; the federal Wills Act 1959 does not apply in Sabah. The Wills Ordinance sets out the formal requirements for a valid will in Sabah, including requirements as to the age of the testator, the manner of execution, and the witnesses required.<\/p>\n\n\n\n The administration of estates in Sabah is governed by the Probate and Administration Ordinance (Sabah Cap. 97)<\/strong>, which sets out the procedure for obtaining the court’s authority to administer a deceased person’s estate \u2014 whether through a grant of probate (where there is a will) or letters of administration (where there is no will).<\/p>\n\n\n\n For non-Muslim estates, the distribution of assets where there is no will is governed by the Intestate Succession Ordinance (Sabah Cap. 99)<\/strong>, which prescribes how an estate is to be divided among the deceased’s surviving family members according to a fixed statutory formula.<\/p>\n\n\n\n Muslim estates are subject to Islamic inheritance law (faraid<\/em>), administered through the Syariah courts and relevant Islamic religious authorities. This article addresses non-Muslim estates; Islamic estate planning is discussed in separate articles on this site.<\/p>\n\n\n\n Under the Wills Ordinance (Sabah Cap. 158), a valid will must meet the following requirements:<\/p>\n\n\n\n Age<\/strong> \u2014 The testator must be at least 18 years of age. There is a limited exception for members of the armed forces and mariners on a voyage, who may make a will at a younger age.<\/p>\n\n\n\n Testamentary capacity<\/strong> \u2014 The testator must be of sound mind at the time of making the will. This means they must understand the nature of making a will, the extent of their property, the identity of the people who might naturally expect to benefit, and the effect of the will they are making. A will made at a time when the testator lacked capacity may be challenged and set aside.<\/p>\n\n\n\n Writing<\/strong> \u2014 A will must be in writing. An oral will has no legal effect (subject to the limited exception for privileged wills mentioned above).<\/p>\n\n\n\n Signature<\/strong> \u2014 The will must be signed by the testator, or by another person in the testator’s presence and at their direction, at the foot or end of the will.<\/p>\n\n\n\n Witnesses<\/strong> \u2014 The signature must be made or acknowledged in the presence of at least two witnesses present at the same time, who must then sign the will in the testator’s presence. A witness \u2014 or the spouse of a witness \u2014 cannot be a beneficiary under the will. A gift to a witness or their spouse is void, though the will itself remains valid.<\/p>\n\n\n\n These requirements are strictly applied. A will that does not comply with the formal requirements may be invalid, and the estate may then be distributed as if the person had died without a will.<\/p>\n\n\n\n A will can:<\/strong><\/p>\n\n\n\n A will cannot:<\/strong><\/p>\n\n\n\n The executor is the person appointed by the will to administer the estate \u2014 to gather the assets, pay the debts, and distribute what remains to the beneficiaries in accordance with the will. Choosing an executor carefully is important. The executor should be trustworthy, organised, and capable of managing what can be a lengthy and detailed process. The executor may be a beneficiary under the will, and it is common to appoint a spouse, adult child, or close friend.<\/p>\n\n\n\n A professional executor \u2014 a solicitor or a trust company \u2014 may be appointed where the estate is complex or where there is no suitable personal executor. Professional executors charge fees for their services.<\/p>\n\n\n\n Where a person dies without a valid will \u2014 known as dying intestate \u2014 their estate is distributed according to the Intestate Succession Ordinance (Sabah Cap. 99)<\/strong>. The Ordinance prescribes a fixed formula based on the deceased’s surviving family members:<\/p>\n\n\n\n The intestacy rules do not take into account the deceased’s actual wishes, the specific needs of individual family members, or any informal understandings within the family. The result may not reflect what the deceased would have wanted, and disputes among family members over an intestate estate are common.<\/p>\n\n\n\n A will is not a document to make once and forget. Life changes \u2014 marriages, divorces, births, deaths, changes in assets, and changes in relationships all affect whether an existing will remains appropriate. In Malaysia, marriage automatically revokes a previously made will unless the will was made in contemplation of that marriage. Divorce does not automatically revoke a will, but it affects gifts to a former spouse.<\/p>\n\n\n\n It is good practice to review a will every few years and after any significant life event, and to update it where necessary.<\/p>\n\n\n\n Making a will is an act of consideration for the people left behind. It reduces uncertainty, minimises the potential for family conflict, and ensures that the people and causes the testator cares about are provided for. For parents of minor children, the appointment of a guardian in a will is a matter of particular importance \u2014 without it, the question of who will care for the children if both parents die may be left to the court to determine.<\/p>\n\n\n\n The process of making a will need not be complicated or expensive. For most straightforward estates, a properly drafted will can be prepared and executed in a single consultation. The cost of not having one can be considerably greater.<\/p>\n\n\n\n This article is intended for general informational purposes only and does not constitute legal advice. The law on wills and estate planning is complex and individual circumstances vary considerably. Readers are encouraged to seek independent qualified legal advice specific to their situation. Nothing in this article is intended as advertising or solicitation of legal services, in compliance with the Sabah Advocates Ordinance.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" Most people know they should have a will. Far fewer actually have one. The reasons are familiar \u2014 it feels morbid, there never seems to be a good time, the estate is not large enough to bother, the family will sort it out. 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\n\n\n\nFormal Requirements for a Valid Will in Sabah<\/h2>\n\n\n\n
\n\n\n\nWhat a Will Can and Cannot Do<\/h2>\n\n\n\n
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\n\n\n\nThe Executor<\/h2>\n\n\n\n
\n\n\n\nDying Without a Will: Intestate Succession<\/h2>\n\n\n\n
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\n\n\n\nKeeping a Will Up to Date<\/h2>\n\n\n\n
\n\n\n\nThe Case for Making a Will<\/h2>\n\n\n\n
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