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After the passing of a person, his or her assets and property are usually distributed amongst his or her own family members. According to the law of inheritance in Malaysia, the method of distribution of the deceased’s estate is pre-determined by the Distribution Act 1958, unless the deceased has made a will. In this article, I would like to discuss a ‘legal issue’ that I have been asked, which is whether writing a will could effectively prevent the estate disputes and family conflicts from happening.

What is a valid will?

A will is like a guidebook or plan for the distribution of an individual’s estate after their passing. So how could you ensure that your will is legally valid? There are several basic requirements to take note of:-

1. the testator must be an adult (attained 18 years of age (except for Sabah));
2. the will must be in written form and signed by the testator ;
3. two (2) witnesses must be present when the testator signs the will;
4. the testator must sign the will voluntarily, without being coerced or deceived by anyone;
5. The will must clearly state the details of the distribution of the estate, including what assets are involved, who the beneficiaries are, and how the assets will be distributed; and
6. The will must comply with the laws of Malaysia. For example, the will cannot include any illegal provisions.

In addition to the above requirements, there are some other suggestions that can be followed to ensure that your will is considered legally valid in the future. You may consider hiring a trusted lawyer to customize a will for you and ensure the same is compliant with the legal requirements. Further, you can also update your will to reflect your latest wishes and circumstances.

Could writing a will effectively prevent an estate dispute from happening?

Although writing a will could provide certain degree of guidance and proper planning, it cannot completely prevent disputes and lawsuits from happening. This is simply because people are naturally greedy. Your heirs may challenge and attempt to claim your estate if they feel that they have not received what they believe they are entitled to. In the circumstances, they may then challenge the validity of the will in court or propound some other related legal issues. However, if the will is deemed valid, it can serve as a legal document that helps minimize disputes and lawsuits amongst heirs. In short, writing a will cannot prevent disputes or lawsuits from happening.

How could the interested party challenge a will?

In Malaysia, the laws allow a will to be challenged. But, the legal threshold for the challenge to succeed is high. Let me take you to the inheritance laws in Malaysia, namely Wills Act and Probate and Administration Act. These 2 laws govern the drafting and execution of wills, as well as the duties and powers of executors. If someone feels that they have not been treated fairly in a will, they can challenge it. Here are some common grounds to challenge a will in Malaysia:

1. The will is not valid.
2. The will was signed under pressure, duress or while the testator lacked mental capacity.
3. The executor lacked mental capacity to make decisions when the will was signed.

The above issues may lead to the challenge of a will and subsequently, disputes and lawsuits. In Malaysia, the validity and distribution of estates are determined by the court. If there is a dispute, the court will assess the evidence and laws and make a decision. Although writing a will can potentially lead to lawsuits, it is still the best solution as it ensures that the wishes of the deceased are respected. If the deceased did not write a will, the distribution of their assets will be determined by the Distribution Act 1941, which may be completely different from the deceased’s will.

How to avoid estate dispute?

Here are some suggestions that may help you to avoid estate disputes:-

1. Seek legal advice

   Consult a lawyer to ensure the legality and validity of the will and customize a will in accordance with your wishes. A lawyer can provide full legal advice in relation to the possible legal issues that may arise.

2. Communicate with your family

   Communicate with your family members. This can help you to better understand their expectations and needs. Further, it also helps them to understand and respect your decision.

3. Update your will

   When time goes by, you may need to update your will based on the changes of your circumstances so that your wishes could be reflected accurately in your will.

4. Avoid unreasonable demands

   You have to avoid making unreasonable demands such as excluding the lawful heirs from getting their share of your estate.

Conclusion

In conclusion, writing a will cannot completely prevent potential estate disputes from happening. But, it is nonetheless better to make a will than not – at least your final will are properly communicated.