UPP4722 Professional Practice II

1142700497 JACQUELINE MICHEL KNIGHT

1142700367 SIVANESAN A/L K. SELVARATNAM
1142700260 NURIN AFIQAH BINTI MOHD HANAFI
1142700610 CARYN LOW JIA YI
 TASK 1

1) Prepare a draft Will and Codicil based on a

sample/template that you must obtain from
any legal firm in Malaysia.

2) Present the method and requirement in

drafting a valid Will in the class.
Sample of Drafted Will
Sample of Drafted Codicil
 Basic Contents of a Will
• It is only sensible that writing a will be personalized according to the
wishes of the will maker rather than in accordance to a template with
modifications.
• Having said that, the basic contents of a will should include the
following:-
1. Date - the date of writing the will;
2. Name & NRIC No. - the name, address and national registration identity card's
number ('NRIC No.') or passport number of the will maker;
3. Last Will Clause - a declaration as to the last will and testament;
4. Revocation Clause - a declaration to revoke the earlier will and codicil (if there
is any);
5. Appointment of Executor - a clause to appoint an executor/executors as well
as another executor/executors in default of execution of the former (collectively
known as the 'Executor');
6. Debts, Funeral and Testamentary Expenses - a direction to the Executor to
settle such debts, funeral and testamentary expenses (It is important to also note
that our estate, does not only comprise of assets but also our liabilities or debts
accumulated during our lifetime);
7. Distribution Clause - a clause containing the description of assets, whether
specifically or generally, and the beneficiaries thereto. In the event of
provisions for children, it is prudent to provide for both living children
and children en ventre sa mere (i.e. children not yet born) to avoid rewriting of
a will every time a child is born especially for the young couple.
8. Appointment of Guardian - a clause to appoint a guardian or guardians of
children until they attain 18 years old;
9. Choice of Law Clause - a declaration that the will be construed in accordance
to the laws of Malaysia;
10. Residuary Estate Clause - a precautionary clause to deal with the residual of
an estate, which includes the assets void against the beneficiary, assets void or
lapse by the death of the beneficiary during the lifetime of the testator, assets
missed out at the time of writing a will or acquired subsequently;
11. Signature of Testator - at the end of the will; and
12. Attestation Clause - there is no standard form of attestation clause required
under the law as long as both witnesses sign at the end of the will with
their names, NRIC No., and addresses stated clearly.
 PARTIES

Testator:
- The person who is creating the will.

Trustee:
- If the will establishes a trust to distribute property, a trustee
has to be appointed to manage this trust.
- A relative or friend.
- Someone who is capable of making important financial
decisions.
- e.g: Corporate trustee such as a banker or financial advisor.
- A trustee is subjected to the responsibilities imposed by the
Trustee Act 1949.
Executor:
- The person who will execute the will.
- Spouse, adult child or close friend.
- Locating your will, applying to court for a grant of
probate, calling in your assets, paying off your liabilities,
distributing your assets according to your will and
preparing a statement of account.

Beneficiary:
- Party receiving an inheritance in terms of cash or property
from the testator.
- People or organizations.
Guardian:
- Duty to provide for a child’s personal need which
includes shelter, education and medical care.
- In a situation, where there is young children, you
will need to name a guardian for them in your will.
- May also manage a child’s assets which you can
name a second person. It can called as a guardian of
the estate.
- An executor may also be a beneficiary to the estate.
Property disposable under will:
- Immoveable: section 27 of Wills act
- Moveable: section 28 of Wills act
- Property passing under a will: section 3 of Wills act
- Section 3 Wills Act provides that a testator may dispose of by
his will properties that he own which is not on trust and to
which he is entitled by law or equity and property acquired
after execution of will.
- Includes residual clause to cover future property.
- Property not belonging to testator is not disposable by will.
- E.g: insurance policy- section 164 (2) of Insurance Act 1996
• company shares
• EPF- section 54(1) (a) EPF Act 1991
Residuary estate:
- Residuary clause is important in ensuring that the
remainder of the testator’s property is distributed
to the person he intend to bequest.
- Definition of will under section 2 is wide enough
to include any residuary clause in a will.
- Failure to draft a residuary clause will cause the
remainder of the property to pass by intestate
succession which is through the Distribution Act
1958.
Requirement and Formalities
of a Valid Will
 Age of Majority
 In Malaysia, a person writing a will must comply with the formalities
stated in Section 4 of the Wills Act 1959 – A will which was made by a
person who has not attain the age of majority is void

 S.2 Age of Majority Act 1971- The age of majority is 18 years old

 Exception – Section 26 of Wills Act 1959 – Sections 4, 5 and 6 shall not

apply to privileged wills, nor is it necessary for a written privileged will
to be signed by the testator
 Testamentary Capacity
Mental Capacity

 S.3 of the Wills Act - every person of sound mind may devise, bequeath or dispose of by his will

• Bank v Goodfellow

 The court stated that soundness in mind must be present at the time of making the will. Sound mind
in this case refer to an understanding of the nature of the business which he is engages on

• Laid down 4 principles:

– The testator is aware that he is engaging in a testamentary act.

– The testator must be aware on the manner of distribution on the property.

– Must have a recollection of the property that is to be distributed.

– Testator must be aware of the person who might be considered to have a moral claim over the
estate

 Harwood v Baker, soundness in mind can be ascertain when the person is at least aware of the
other person who may have claim on his estate even if he decide not to benefit them.
• Re Ng Toh Piew

 The testator made the first will in 1947 and he was found to be of sound mind.
In 1949 when he made his second will he was extremely ill and failed to
provide for his son as he had done in the earlier will. He also told one of the
witnesses that he had no son. The court declared the second will as invalid

• Angullia v. Rahimaboo

 The Testator had been pronounced insane in 1910, 1918, 1924 and 1934.
During a lucid period in 1938, the Testator made a will giving most of his
estate to charity and died 3 years later. The doctor and lawyer who attested the
last will deposed to the fact that the testator was physically weak and mentally
dull, yet was of sound mind, memory and understanding. The testator died of a
diabetic attack. The court held that on the evidence as a whole the will had been
made during a lucid interval.
 Free Will
 In order to make a valid will, the court need to ascertain that the
will is not make under undue influence, fraud or coercion

 If a Will is accompanied by force, fear, forgery or undue influence,

the Will is Void. The onus of establishing any of these extraneous
vitiating elements lies on those who assert.
• Hall v Hall

 The court decided that there must be no coercion, where a

testator may be 'led but not driven'. This means that the testator
may be guide in making the will but not force. Coercion in this
case refers to threat or pressure to the testator.
Wilkinson v Joughin,
The court stated that fraud happen when the testator has been
deliberately deceived by a person or being fraud, thus, the will
is invalid
If the will is suspicious in the eye of the court/judge after there
is an application of probate the court would not grand the
probate.
Barry v Butlin, the court need to make sure that the suspicious
is removed before the probate can be granted
 Intention
 The testator must have the intention to create the will, must
have the knowledge of the content of the will and must have
approve the content of the will
 If the Will does NOT appear to be testamentary on its face, the
propounder must prove that it was intended by the Testator.
 Determination of intention can be seen in the case of Re
Khibbs, where there must be a statement of the deceased wishes
for the disposition of his properties upon his death and it is
conveyed to the witness
• Hsu Yik Chai v Hsu Yaw Tang (1982) 2 MLJ 227
• The court had to construe the words used in a will to decide on
whether the testator had intended a trust or a conditional gift of his
land. The appellants argued that the testator intended to create a
trust for his children and widow based on the words but the
respondent submitted that the testator devised the land to them on
a condition that they maintain and educate his children until they
had attained the age of majority. Once the conditions has been met
they were entitled to the land.
• Held: The testators intention was to create a conditional gift.
 Formalities

GR: Section 5 of the Wills Act 1959

1) In writing
2) Signature
3) Attestation

Exception: Section 26 – Privilege Will

- Can be made orally
 1) In Writing
• The Wills Act does not define the meaning of being “in
writing”.

• Interpretation Act 1978: Includes typing, printing, lithography,

photography and other modes of representing or reproducing
words in a visible form

• Re Goods of Adams: it was held that if a will is partly in pencil

and partly in ink, it would be presumed that the pencil was only
intended as a draft. That would mean that the pencil part will be
excluded from the will unless there is evidence that they were
clearly intended by the testator to be part of the will.
• The law is silent towards the language used.

• Whiting v Turner: A French testatrix made a will in France

headed ‘Mon Testament’ and written in French.

• Re Berger: documents written in Hebrew were held to

constitute a will. The test is whether the writing is
decipherable. If it is, then Section 5 is satisfied.

• Hudson v Barnes: the Testator chose to write his Will on an

egg shell which his widow found the eggshell which before the
message “17-1925. Mag. Everything I possess.” amongst the
Testator’s belongings.
 2) Signature
• By testator or other person and in the presence of 2 witnesses

A) By testator
 Section 5(2) WA: full/half initial and to be at the foot/end of the
will.

 Re Chalcraft: the testatrix started to write her name but was

unable to complete the signature because of her weak condition.
Willmer J held that the codicil was valid as what she wrote was
intended by her to be the best she could do by way of writing her
name.

 Re Finn: a smudged, inky thumbprint which produced a ”mere

blot” on the will was held to be sufficient as it was intended by
him as his signature.
 Even if the testator can sign normally but chose to use a mark
instead, Section 5 can be satisfied provided the mark was intended
to represent his signature.

 Re Mann: the testatrix wrote out her will on a piece of paper but
did not sign it. She wrote on an envelope, ‘the last will and
testament of Jane Catherine Mann’ and placed the will in the
envelope. Langton J held that the envelope was part of the will
despite the absence of any form of attachment as an envelope has
a far close relationship to a document which it encloses than a
second and wholly disconnected piece of paper.
B) By Other Person

 Allowed third party to sign on behalf with discretion/instruction

of Testator in front of the testator with 2 witnesses.

 Acknowledgement by testator.

 Re Goods of Clarks: the testator was very close to death and

had requested the vicar attending to him to write out a will on his
behalf and to sign it. The vicar signed his own name. It was held
valid.
 3) Attestation
• 2 witnesses:
- Sound mind
- Attained age of majority
- Able to testify
- Section 8- Section 11 Wills Act
 Section 5(2): to attest the testator’s signature/acknowledgement at
the same time in front of each other and in front of the testator.

 Dr. K Shanmuganathan:
1) The testator must either sign the will or acknowledge his
signature already made on the will, in the joint presence of the
2 attesting witness.
2) Both attesting witness must sign their respective names in the
presence of the testator.
3) Not essential for both attesting witnesses to sign in the
presence of each other.
 Re Colling: the testator asked a hospital patient and a nurse to be
his witnesses when he sign the will but the nurse left the room and
he continued to sign it with the presence of the other witness. The
nurse later came in and put down her signature and acknowledged
the will. Held: The will was invalid as the witnesses need to attend
the testator’s signature at the same time.

 Section 8: Incompetency of the witness will not invalidate the will.

 Section 9: Gifts to attesting witness or to the spouse of the attesting

witness is to be void.
 Section 10: Creditor is capable to be a witness to attest the will,
even through the will mentioned that the creditor is beneficiary
of the debt.

 Section 11: An executor is not incompetent to be a witness,

which means an executor can be a witness if he is not being
given gift under the will. The gift is to be void if the executor
chose to be a witness of the will.
 Alteration of Will
• If Testator wants to alter anything in the Will without draw up codicil or
make new Will, then alteration can be done on face of Will

S.15 of WA:  can be made after execution

Should never attempt to change the Will by deleting/ omitting/
adding or attaching anything on to the Will = invalid Will
Alteration made by writing on the Will, executed in a manner
which Will is required before it can be executed

• Signed by Testator/ by someone in his presence & under his direction +

witnessed by 2 witnesses

– Re Chew Kim Kiew Fact: Testator made certain alteration to Will after
executed, but he did not sign/ attest by the witnesses on such alteration
– Held: Alteration is invalid and ineffective because there is no signature and
witness by the witnesses
Codicil
• Serve to amend a previous executed Will in a separate
document.
 Similar to a Will but it is supplemental to a Will + it is
annexed to a Will in order to add/vary the contents of the
Will
• Another document in addition to a Will, signed & witnessed
in the same manner as original Will
• Effect: change made without require Will to be re-executed
(not to revoke all the contents of the original Will & to make
a new one)
 Revocation
• Action of calling back a valid Will by rescinding or annulling it

• Made with intention to revoke by testator

• Methods of revocation: anytime before death of testator
• Valid will

Types of revocation
1. Involuntarily (operation of law/ automatic)
a) Marriage
S.12 of WA: will revoke by testator’s marriage, except by contemplation of marriage

• Divorce or separation = not amount to revocation of will

Re Wan Kee Keong

• Testator made will + appointed his wife as sole executrix & trustee
• Wife died, married respondent

• Held: execution of testator in codicil revive his will which had been revoked by
the previous marriage & right to admit will & admit codicil to probate
b) Conversion to Islam
• When a Non-Muslim person converts to Islam, it shall revoke the will
• Reason: automatically follow the Islamic Faraid law in distribution of estate

2. Voluntarily Revocation

S. 14 of WA: will shall be revoked when:

• There is another will executed

• There is some writing declaration of intention to revoke & executed in same

manner as a will

• There is destruction – burning, tearing/ destroying the will by testator or by

person in his presence & by his direction

• Made wholly or partly of the will

a) New Will

• Making of subsequent will would revoke former will

• Contain express revocation clause

Re Hawksley’s Settlement

 Description of testator’s last will = not sufficient for express revocation clause.
Words important, ‘I revoke’ must be embodied in revocation clause

b) Written Declaration
• Written statement = intention to revoke

Re Durance
 Will revoke by letter because executed in writing which shows an intention to
revoke the will
c) Destruction

• Testator or other person in his presence or under his direction (act) with
intention to revoke

Elements:

• Actual destruction of will = burning or tearing

• Intention to revoke the will

Re Adams

 Signature of testatrix and attesting witness had been obliterated by

ballpoint pen. Held: sufficient revocation as it had actually been
destroyed
Cheese v Lovejoy

 Testator wrote on will ‘this is revoked’, threw in a corner of room

and was preserved by housemaid until his death

 Held: will is not destroyed and admitted to probate although got

intention

Gill v Gill

 Testator’s wife had tore up his will in temper

 Held: no actual destruction because will is not destroyed under his

direction