This article first appeared in the Lifestyle section of The Star newspaper on 1 Oct 2007. It is reproduced here in full:
Love expressed
Stories by S. INDRAMALAR
CHRISTINE Jacobs died seven years ago at 77. Though not wealthy, the retired teacher had a trunkful of family heirlooms that had been passed down for many generations.
Jacobs had been terminally ill for years, but did not write a will as she assumed her three children would divide her assets peacefully among themselves after her demise. But she was wrong. Her children, all in their thirties, could not agree on who should get what.
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They forked out quite a sum of money to engage lawyers, thus complicating matters and delaying the division of their inheritance.
Posthumous squabbles over inheritance are common and can break up even the most close-knit families.
Writing a will – an up-to-date one that states your wishes explicitly – can eliminate conflict at a later stage, says Saw Leong Aun, founder and group chief executive of Rockwills International Sdn Bhd.
“A will, like an insurance policy, is a form of protection for your loved ones in the event that anything untimely happens,” says Saw. “It protects your beneficiaries and makes sure that your assets go to the right people. It’s an expression of your wishes. It’s not just about ringgit and sen.”
Unfortunately, says Saw, most Malaysians put off writing their will for various reasons.
“Some believe they don’t have enough (money or assets) to warrant a will. Others procrastinate, thinking that they have plenty of time to write one, not realising that anything can happen.
“For some others, mostly the Chinese, writing a will is pantang (taboo),” he explains.
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Saw Leong Aun: ‘(Having a will) protects your beneficiaries and makes sure that your assets go to the right people. It’s an expression of your wishes. It’s not just about ringgit and sen.’ |
Recent news reports estimated that close to 90% of Malaysians above the age of 18 (the minimum age) have yet to write their wills. As a result, said the report, there is close to RM40bil worth of unclaimed cash and non-cash assets (mainly property) with the Registrar of Unclaimed Monies, and RM70mil or more in the Employees’ Provident Fund.
“It is only when there is a tragedy and people realise the transiency of life that they think about writing a will. During the SARs outbreak a few years ago, we had more people coming in to write their wills,” Saw says.
You decide, not the courts
In Malaysia, as in many other countries, there are laws that govern the distribution of a person’s estate if they die intestate (without a will).
“If there is no will, assets will be distributed according to the Distribution Act 1958 (amended in 1997),” explains Saw.
“If a married man dies intestate and he has surviving parents, a spouse and children, his assets will be distributed according to the law, that is, 25% of the estate to his parents, 25% to his spouse, and the remaining 50% will be divided equally among his children. Should the parents pass away later, the deceased person’s siblings can claim the parents’ 25% share.
“But if you write a will, you get to decide who gets what. You also get to choose an executor for your will, someone you trust,” says Saw.
Contrary to popular belief, a will is not limited to disposing of assets. You can also appoint guardians for your children (if they are minors), leave instructions on whether you want to be buried or cremated, and even include terms of endearment for your loved ones in your will.
“In the case of sudden death, there is no time for last words or goodbyes. Some people use their will as a personal document of sorts and include messages to their loved ones,” explains Saw.
“There was a mother who wanted to state in her will that she did not want her daughter to marry a mat salleh. You cannot forbid your loved ones from doing anything really, but you can express your wishes.”
If the testator wishes, he can stipulate how he wants his assets and cash to be distributed to the respective beneficiaries.
“Some parents want to ensure that their children are well taken care of throughout their lives. So they put the inheritance into a trust and appoint a trustee to dispense specific amounts (as stated in the will) at stipulated periods,” says Saw.
Changing wills
Another myth about wills is that once you write one, you can’t change it (at least not without much hassle).
Lawyer Michelle Tan, 32, says she plans to write a will “maybe in five years’ time when I have actual assets that are worth something”.
She says, “I don’t want to make a decision (about my beneficiaries) that I may regret later. Plus, I may be getting married in a year or so, and I may want to include my spouse in my will.”
Such excuses do not hold water, says Saw.
“You can change your will anytime. Even if you feel you do not have much now, you can write a will now and amend it later. And, if you draft your will properly, it can also cover all future acquisitions,” he adds.
A will can be revoked, either voluntarily or by the law. For example, if a person is single at the time the will was written, it will automatically be revoked when he gets married.
If a person is planning to get married in the near future, he can still write a will stating the name of the person he intends to marry, making the will valid. The same applies if a woman testator intends to marry.
Also, in Malaysia, once a non-Muslim converts to Islam, the distribution of his estate is governed by syariah laws and any earlier will that has been drawn up will automatically be revoked.
Of course, a new will necessarily supersedes earlier wills.
Do it yourself
Anyone can write a will, as long as they are above 18 (in Sabah, the minimum age is 21). Of course, the testator has to be of sound mind when he is writing his will.
“In the case of people with psychiatric problems or other ailments like Alzheimer’s, certification from a doctor (that the patient is lucid and knows what he is doing, and is doing so of his own free will) is mandatory.
“And, if the will is contested in court, the certifying doctor must be willing to act as a witness,” says Saw.
All wills must be in writing for it to be valid. It does not matter if it is handwritten or typewritten, a will is only valid if it is on paper and attested to by two witnesses who must both be present when the testator signs the will. The witnesses cannot be beneficiaries of the will nor can they be married to a beneficiary.
“Some people are worried about letting their witnesses know what is on their will or how much assets they have. However, it is not necessary for the witnesses to know the exact contents of the will. The witnesses are mainly there to confirm that the testator was of sound mind when the will was signed,” says Saw.
Although it is possible to draft and write your own will, it is perhaps advisable to seek professional counsel to ensure nothing is overlooked and that the will is airtight, reducing the chances of it being contested in court.
Apart from professional will writers, counsel can also be sought from lawyers who are well-versed in estate-planning. Little details like phrasing your will appropriately and observing technicalities are important when drafting a will.
For some, sharing the contents of their will with their beneficiaries is a way of making sure there are no disputes when the will is read out. Others, however, insist on keeping their wills confidential. They keep it in a safe deposit box or in a secret location that nobody knows.
“There is a risk in keeping your will in a safe deposit box in a bank or in a secret hiding place. The safe deposit box will automatically be frozen by the bank when a testator dies, making the will inaccessible,” says Saw.
“There have been cases where, because the deceased kept his will in a secret location, and told no one about it, no one knew he had a will. This defeats the purpose of writing a will,” says Saw.
There is, of course, the option of keeping your will with a confidante – a friend or relative you trust.
At Rockwills, testators have the option of leaving their wills with the establishment for safekeeping under its will custody service.
“We have a strong room for the wills in our custody to keep them safe from natural disasters like floods, or even burglars. We issue personal identification cards with a bar code for easy retrieval and identification. Only the testator can retrieve the will or, after his demise, only his executors can,” adds Saw.