Will, an instrument that can legally represent a person’s last wishes after his/her death.
It is such a powerful instrument that by law, it may supersedes the “actual” but informal last wish of a person. Assuming John is dying, laying on the ground with 10 witnesses before him, he verbally pronounce to distribute all his properties to A before his last breath. Then he died. Later, someone found a written document titled “Last Will and Testament” signed by John 5 years ago. It was executed before 2 lawyers as his witnesses and it clearly states all of John’s properties will go to B upon John’s death. John’s actual last word may be to distribute all to A, but legally, his “Last Will and Testament” is to distribute all to B. Based on the above, the law will see to it that John’s property is transferred to B, not A. That is the force of a written and properly executed Will.
Due to such powerful nature of a Will, the law tries to ensure all Will reflects the true wishes of the author. Generally, a Will must be signed, witnessed, and the content must be sufficiently clear and accurate. A simple unintentional mistake may cause a genuinely executed Will to be deemed invalid under the law. For example, do you know that both witnesses must be present at the same time when each of them sign as witness? Do you know who can or cannot act as a witness? Due to these formal requirements, it is not advisable for anyone to prepare a Will without legal advice.
Many Wills were successfully challenged because the testamentary capacity of the person signing the Will is in doubt. This generally means that the person does not have a free and capable mind to understand and sign his own Will. The testamentary capacity will be in doubt when the author of the Will was found sick and hospitalized around the time the Will was signed. In the case of Joni ak Mos & Ors v Beti ak Rujim at Kuching Court for example, the Will was executed by a hospitalised patient who died 2 weeks after the Will was executed. It was declared invalid because doctors were not consulted or called to testify that the deceased had the testamentary capacity to execute his Will at the time of execution. In the case of Choo Mooi Kooi @ Choo Soo Yin v Choo Choon Jin @ Jimmy Choo, the deceased was diagnosed with serious illness 1 week after his Will was executed. The Court noted it “appeared that the taking of instructions and execution of the Will by the deceased was hurriedly done”. Supported by other suspicious circumstances surrounding the said Will, the Pulau Pinang High Court declared that the deceased had no testamentary capacity to execute the Will and the Will is invalid. It is therefore an important practice to prepare a Will at your earliest convenient time as opposed to writing it only when death is near.
Lastly, while we always title the document as “Last Will and Testament” of so and so, legally, it can always be changed or substituted by another “Last Will and Testament” from time to time. Maybe new properties were acquired, maybe old ones were transferred away, maybe new children or grandchildren were born, or one of the beneficiary passed away, otherwise, maybe the author simply changed his mind. Due to any reason, a Will may be changed. The amended or new Will must adhere to those same strict legal requirements as an original Will. When there are more than one Will, the most recent Will is legally the Last Will and Testament that will be enforced by Court.
In summary of the lessons learned from the above:
(1) Prepare a proper Will because that is the only document that will legally represent your last wishes after death.
(2) Seek legal advice when preparing a Will to avoid an invalid Will.
(3) Prepare your Will early, when you are healthy and mentally capable.
(4) Don’t worry about preparing a Will too early. You are free to change your Will when you deem fit.
So, do you have a Will?
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