SinChew Daily Interview (Part 1)
Interview by Sin Chew Daily, one of the most famous Chinese Newspaper in Malaysia.
Lawyer Khoo Ai Theng, P.J.K. (NSDK), Managing Partner of Ng Kee Way & Co.
Translated From Chinese Version.
Topic: Make A Will, Protect Family Members After Death
“There is an unpredictable situation anytime, and there is a blessing for everyone.” No one can predict when he will say goodbye to his love. Many people will do their best when they are alive, hoping to let the people around them enjoy the best life. So have you ever thought about what you can do for your loved ones after death?
Some will make a will first, and after death will help love to reduce unnecessary trouble; others will decide to donate their organs after death. Either the former or the latter, one’s hope to continue to love the world after death.
A will is a document with legal benefits. The decease can distribute the property to his loved ones according to his wishes, even if the beneficiary is not related by blood.
Many people used to have taboos about wills, especially Chinese, because a will is also called a “safe paper”, and it feels like it is no longer safe after the will is made. However, as the education level of Chinese people generally improves and they understand the benefits of making a will, gradually more and more people have made a will, and there is a trend of younger generation.
Lawyer Khoo Ai Theng once wrote a will for a 23-year-old client, so she encourages the public not to believe in taboo, because once a death certificate is issued, all the deceased’s property will be automatically frozen if without a will.
“Without a will, the processing procedures will become more complicated and take longer time.
If the child is still studying, the financial situation will become tight, which exacerbates the dilemma of life. “
Therefore, the amount of property is not the main reason for making a will or not. It is the true meaning of making a will to avoid the financial difficulties of those around you.
Will can be made if you turn 18
Since a will has legal benefits, it must be drafted in compliance with the regulations set by the law. The basic condition for a testator is that he must be at least 18 years old (21 years old in Sabah) and conscious when making the will.
The will must be presented in writing, and there must be two witnesses on the spot to testify that the testator was sober when he signed the will, and the executor and beneficiary must be clearly listed in the will.
Simply put, in addition to the basic conditions that the testator must meet, a will must have an executor, two witnesses and a beneficiary in order to have legal benefits.
An executor is a person who is authorized to apply for a grant of probate and execute the contents of the will after the death of the testator. The executor can also be the beneficiary.
Lawyer Khoo Ai Theng stated that the executor has no restrictions, as long as he reaches the legal age. She usually encourages the beneficiary to act as the executor, because when he has dual status, the beneficiary is more willing to execute the will and will not disappear without reason.
In addition, the younger executor has an advantage over the testator, because it saves the trouble of finding a replacement executor.
“I have encountered a situation where the executor died earlier than the testator, and the testator did not modify the contents of the will. When only one executor was appointed, I had to find a relative who handled the affairs on behalf of the executor during his lifetime to execute the will on his behalf. “
In addition, the testator is allowed to appoint four executors in a will at the same time, and can also provide a candidate list to the lawyer. In case the originally appointed executor disappears or dies prematurely, the candidate will automatically fill the vacancy.
In addition to witnessing the process of making a will on the spot, the purpose of the witness’s existence must also be signed on the will to testify. After the testator dies, the witness must also take an oath on the affidavit as one of the proofs for the application for probate.
In the same way, in order to avoid trouble, Lawyer Khoo Ai Theng also encourages the testator to find younger and honest witnesses. However, the witness cannot be the beneficiary or the executor, let alone the husband and wife relationship with the testator.
She said that in fact, the process of making a testament is not complicated, and the testator only needs to go to the lawyer’s office twice before and after. The first time is to provide the contents of the will and attach asset information such as land deeds, bank account numbers, vehicle registration certificates, etc., and the second time to sign the will with witnesses.
“As for the fee, the lawyer will consider it according to the length and complexity of the will. In Klang Valley, the fee for the lawyer to make a will starts from 400 to 800 ringgit.”
In addition to law firms, there are now some public or private trust companies such as Amanah Raya and Rockwills, insurance agents, etc., which provide will-making services. People can find suitable units to make a will based on their financial ability.
Handwritten will is recognized, but it must meet the conditions
Lawyer Khoo Ai Theng said: “Under the law, there will always be only one will. Some people will make five or six wills with the same content at the same time, but only one will be listed as the original, and the rest will be stamped with copies.”
After the will is made, the lawyer usually asks the testator to keep the will on his own. Of course, some law firms will provide customers with the service of keeping the will for a fee.
Lawyer Khoo Ai Theng suggested that the testator need not conceal the beneficiary or the executor, and at least let the executor know the place where the will has been made and where the will is stored, otherwise the previous efforts will be wasted.
“In addition, the testator and the witness usually only sign on the last page of the will. However, when the testament is more than ten pages, the testator and the witness must sign under the page of each page, in order to prevent changes made by certain people.”
Lawyer Khoo Ai Theng also reminded the public to pay attention to two things that do not have to be written in the will, but the very important assets which are the EPF and insurance money. “The public must remember to indicate the name of the beneficiary in the insurance policy and to the EPF, so as not to go through complicated claims procedures.”
As for whether the handwritten testament has legal benefits, she said that as long as the testator reaches the legal age and is sane. A will with the signatures of the testator and two witnesses, and specifying the executor and beneficiaries, has legal benefits.
However, when writing a will, you must be very careful with the words and details to avoid disputes in the future. For example, when most people refer to real estate in their handwritten wills, they only indicate the address, ignoring the land deed number, land bureau registration number, area, etc., which will not change.
“But the address is a very personal recognition. For example, some people in Ayer Hitam will spell it as Air Hitam, which may cause disputes in the future.”
Therefore, she suggested that if possible, it is better to seek professional assistance, because all the details of assets or properties, testator information, beneficiary information, etc., professionals are obliged to handle with care, which will be more secure.
1.Can the testator make a will by typing it on his own, and is the will made in Chinese valid?
As long as the legal requirements are met, that is, the testator is of legal age and conscious, the testament is presented in writing, signed by the testator and two witnesses, and the beneficiary and executor are listed, the testament has legal benefits.
As for language, the lawyer will first assist in translation, and then apply for probate from the High Court.
2. When the testator is critically ill and cannot write the will by hand, he can only verbally tell it to be written by someone else. Does this have legal benefits?
As long as the testator personally signs the will and meets the above mentioned conditions, it will have legal benefits.
3. Under what circumstances will the will lapse?
A change in the marital status will cause the will to become invalid. For example, a will made when you are single will become invalid after marriage, unless it is clearly stated in the will that the original will will be the standard regardless of whether the marriage status has changed. This is based on the law to protect the interests of partners and children.
4. When I made the will, I only had one real estate. Without modifying the will, how can I protect the added property in the future, or can I distribute it according to my wishes?
The testator must include the Residuary Clause in the will to ensure that the property added in the future is included in the will. The advantage of attaching the Residuary Clause is that the testator can distribute the added property to the beneficiaries in different proportions according to his own wishes. If this clause is not attached, the added property will be distributed to the beneficiaries in accordance with the Distribution Act 1958.
5. The testator died when the child was under 18 years old. What will happen to the estate?
To make a will when the child is under 18 years of age, the testator needs to appoint two guardians to manage the estate in the future. For example, if the testator passed away, the guardian can use the estate to help pay utility bills, etc. until the child turns 18, and then return the asset to the child to take care of it. In addition, the intention to appoint at least two guardians is to supervise each other to prevent abuse of the estate.
6. In case the law firm that made the will goes bankrupt, how will the will be handled and will there be any legal benefits?
If a law firm fails, the Malaysia Bar Council will intervene and refer the legal documents processed by the closed law firm to other law firms, and the relevant law firm will notify the parties that the case has been referred to it afterwards. Therefore, the bankruptcy of the law firm will not affect the legal benefits, but the lawyer in charge of handling the case has been replaced.
Sin Chew Daily. Report: Guo Huijun. 2015.12.07