What are the things we need to take note while writing a Will?

When writing a Will, it is important that the Will must be made in accordance to the Will Act 1959. Under the Act, there are some formalities to observe:-
1. The testator (person writing a Will) must be above 18 years old (For Peninsular Malaysia & Sarawak) and 21 (For Sabah)
2. The testator must be of sound mind.
3. The Will has to be attested by at least two witnesses present at the same time when the testator signs the Will.
4. A will must be in a prescribed form.
5. The beneficiaries of a Will or their spouse must not be the witness.
6. There must be a revocation clause in the Will.
7. A residuary clause to prevent partial intestacy to happen.

In a Will the testator can appoint his/her preferred Executors. The duties of the Executors are:-
• To locate the Will,
• To make funeral arrangement,
• To apply for a grant of Probate,
• To locate the assets, Pay all debts, (Trustee Act 1949)
• Prepare Statement of Accounts,
• To distribute the assets according to the Will
• To carry out the wishes mentioned in the Will.

A maximum of four Executors can be appointed in a Will. The testator can appoint them either jointly or as substitute to each other. It is recommended that two joint executors be appointed whenever there are minor beneficiaries in the Will.

It is important that we appoint an Executor that is trust worthy. A person who can carry out the estate administration duties effectively and efficiently. It will be even better if the Executor is familiar with the legal estate administration process. Traditionally, we appoint our family members to be the Executors, however, today, more and more testators are appointing trust corporation as Executors in their Wills.

A trust corporation is a better choice than an individual as an Executor. A trust corporation ensures the estate administration process is carried out professionally. Furthermore, a trust corporation enjoys perpetual succession, it never die or get sick and will not delay the administration process.

When there are minor beneficiaries named in a Will, two Trustees or a trust corporation should be appointed. Trustees are custodian of assets. It is important that we appoint Trustees we trust. The roles of Trustees are equally as important as the Executors. Some of the duties of Trustees are:-
• Continue to administer the estate where the assets can not be distributed e.g. for a minor or before the trust period ends.
• Manage the estate according to the instruction and power given by the Will and according to the Trustee Act 1949.

Normally, the Executors appointed in a Will continue to act as Trustees for minor beneficiaries.

Guardian can be appointed in a Will to take care of the welfare of the minor in the event of his/her spouse predeceased him/her or both were to go together.
It is also advisable that we should not appoint the Trustees as the Guardian. It is always wise to appoint different person to ensure there is counter-check, especially when there is money left behind for the minor children.

A beneficiary is a person who receives gifts in a Will. A beneficiary can be an individual or entity like a charity. It is important we state the name of the charity in a Will. If the charity named in a Will has ceased to operate, the Executor can donate the gift to another charity of with similar purpose.

When naming an individual as a beneficiary, it is always advisable to name a substitute beneficiary if the particular beneficiary pre-deceased us.

Apart from disposition of property, cash, shares etc, a will can also deal with other aspects e.g. funeral arrangement, terms of endearment.