You have signed your will but not in the presence of any witnesses. As making a will is one of the most important things you will do, you will want to make sure that you have it legally enforced. Your loved ones will thank you in the long run as you have their best interests at heart when you are no longer around.
Theoretically saying, if you write your will on paper and have it properly signed in front of 2 independent adults present, then the will should be considered legally binding. However, it does not mean it is necessarily a good idea.
You can do a “DIY (do it yourself) will” as allowed under the Malaysian Wills Act 1959. DIY wills cost next to nothing, if not entirely nothing at all. It does have its own drawbacks though.
How do you have a valid will in Malaysia?
If you are writing a will in Malaysia, you must comply with the formalities stated in Section 5 of the Wills Act 1959. For the will to be valid and effective in the eyes of Malaysian law, the will must be:
- The will writer needs to be at least 18 years of age at the point of writing the will
- The will writer needs to be of sound mind
- The will must be in writing
- The will must be signed by the will-maker in the presence of at least 2 adult witnesses
- The 2 witnesses must then sign in the presence of each other and the will writer
Who must be the witness of your will?
Your will needs to have at least 2 witnesses to ensure that your will is legally valid in Malaysia. Make sure that at the point of witnessing and signing your will, the 2 witnesses have to be of sound mind and are legal adults over the age of 21 years old. At the same time, the will writer will also have to be 18 years of age and be of sound mind.
A beneficiary named in your will cannot be one of the witnesses of your will. However, an executor can be a witness as long as the executor is not a beneficiary in your will. An executor is a person who executes and administers your will and estate.
However, the executor can also be the beneficiary of your will. As long as the executor does not benefit from your will, then he or she can be the witness to your will.
Why must there be witnesses to a will?
This extra level and step of formality in will writing are for caution’s sake. To be fair, when the will writer has passed on and the will takes effect, the will writer will not be able to attest to say that will, indeed, belongs to them. That is why at least 2 witnesses are needed to be present and sign the will with the will writer.
The witnesses can come forward to court to testify that the will was indeed written by the will writer themselves. They will also need to say that the will writer appeared to be of sound mind and not under any undue influence at the time of signing the will.
What happens if the will is not witnessed?
The short answer is that the document will not be recognized and accepted by the court. Even though it has the signature of the will writer, it is still considered unrecognized and unacceptable.
When the will is not properly witnessed, it is essentially a useless piece of document. Whatever assets the will writer has will be distributed accordingly to Malaysia’s Distribution Act (1957). The process to locate and disseminate the assets will be a long and painful one.
The best way to have a will legalized is not just to have it legalized with a certified lawyer. Make sure that you have 2 witnesses to sign your will with you so to make your asset distribution a lot easier.
If you need any help with will writing, feel free to reach out to us for help. We will be more than happy to assist you in preparing your will for you.