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1. (i) Nature and Characteristics of Wills
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(i) Nature and Characteristics of Wills
Halsbury's Laws of Malaysia - Wills, Probate, Administration and Succession (Volume 11(2))
Halsbury's Laws of Malaysia - Wills, Probate, Administration and Succession > 330 – Wills,
Probate, Administration and Succession > (1) Wills > (1) Testamentary Disposition > A.
Introduction
330 - WILLS, PROBATE, ADMINISTRATION AND
SUCCESSION(1) WILLS (1) TESTAMENTARY DISPOSITION A. I
(i) Nature and
NTRODUCTION
Characteristics of Wills
[330.001] Meaning of ‘will’ and ‘codicil’
A will is the declaration in a prescribed manner1 of the intention of the person making it with respect to his property2
or other matters which he desires to be carried into effect after his death and includes a testament3, a codicil4 and
an appointment by will or by writing in the nature of a will in exercise of a power and also a disposition by will or
testament of the guardianship, custody and tuition of any child5. In this title, only the law in West Malaysia applying
to the wills of persons not professing the religion of Islam is stated6.
1
As to formalities see [330.028] and following. For the various forms of will see 23 The Encyclopaedia of Forms and Precedents
(4th Edn) pp 567–597 Forms 1:A:1–1:E:5.
2 For
these purposes ‘property’ includes lands, leases, rents and hereditaments corporeal, incorporeal or personal and any
individual shares thereof and any estate, right or interest therein or in relation thereto, moneys, shares of Government and other
funds, securities for money, charges, debts, choses in action, rights, credits, goods and all other property whatsoever which
devolves upon the executor or administrator and any share or interest therein and any contingent, executory or other future
interest: Wills Act 1959 (Act 346) s 2(1). See note 6 below. The Probate and Administration Act 1959 (Act 97) s 2 defines
‘property’ as including a thing in action and any interest in movable or immovable property. The right to sue, being a chose in
action, is property within that definition: see Ng Sook Hooi v Ng Kim Seng [2001] MLJU 368 (HC) .
3 The
expressions ‘will’ and ‘testament’ appear to be synonyms and are used interchangeably in our law.
4A
codicil is of similar nature to a will as regards both its purposes and the formalities relating to it, but in general it is
supplemental to and considered as annexed to a will previously made, being executed for the purpose of adding to, varying or
revoking the provisions of that will.
5 See
the Wills Act 1959 s 2(1). See also Chenna Gounder a/l Kandasamy v Angamah a/p Sunappan [2017] 10 MLJ 387
(HC) . Under the Guardianship of Infants Act 1961 (Act 351) s 7, a parent of an infant has the statutory power to appoint any
person to be guardian of the infant after that parent's death; and see [390] FAMILY LAW (2017 Reissue) [390.083].
6 The
Wills Ordinance 1959 (FM Ord No 38 of 1959) came into force on 1 April 1960 (see Government Gazette LN 55/1960).
This Ordinance applied only to wills where the testator died on or after 1 April 1960, the date on which the Ordinance came into
force, irrespective of whether the will was made before, or on or after that date. The Ordinance has since been superseded and
the revised edition of the Wills Act 1959 came into force on 6 October 1988 and applies to the States of West Malaysia only: see
the Wills Act 1959 ss 1(2), 2(2).
[330.002] Essential characteristics
Page 2 of 4
(i) Nature and Characteristics of Wills
A will is normally made for the purpose of making dispositions of property to take effect on or after the testator's1
death, but it may also be made for the purpose of appointing executors2 or other persons whom the testator wishes
to manage or assist in managing any part of his estate, for appointing guardians of his infant children after his
death, for exercising any power exercisable by him by will, for revoking or altering any previous will of his3, taking
effect on or after his death. Every will, however, has this essential characteristic, that during the life of the testator it
is a mere declaration of his intention and may be freely revoked or altered in a prescribed manner4. Until his death,
the will is ambulatory, or without a fixed effect, and capable of operating on property which becomes the testator's
only after the will is made5. On his death, it crystallises and takes effect as an appointment, disposition or otherwise,
according to its tenor6.
A will must be distinguished from a disposition made inter vivos, such as a gift mortis causa7 which is made in
contemplation of the death of the donor in circumstances which show that it is to take effect only in that event, or a
voluntary settlement with a power of revocation8, or a nomination of a beneficiary under a trust deed or life policy
operating by reason of the force of that deed or policy, or a nomination of beneficiary under rules of the employees
provident fund (EPF) operating by reason of the force of the Employees Provident Fund Regulations 20019. A
fortiori, an instrument which is not revocable and which comes into operation in the settlor's lifetime is not
testamentary10.
An attempted testamentary disposition cannot be enforced as a declaration of trust11. The revocable nature of a will
cannot be lost, even by a declaration that it is irrevocable12, or by a covenant or contract not to revoke it13. After
revocation the will may, however, be revived.
1
‘Testator’ is used in this title whatever may be the contents of the will, and whether the will disposes of property or not. The
terms ‘testate’, ‘intestate’, ‘testacy’ and ‘intestacy’ in their ordinary sense are associated with the question how far the testator's
property is disposed of by the will, whether completely, incompletely or not at all.
2 As
to the appointment of executors see [330.022].
3 As
to alterations see [330.036]; and as to revocation see [330.037] and following.
4 However,
no transfer, conveyance, assignment or other act made or done subsequently to the execution of a will or codicil of or
relating to any property therein comprised, except an act by which such will or codicil must be revoked as aforesaid, must
prevent the operation of the will or codicil with respect to such estate, right, share or interest in such property as the testator
must have power to dispose of by will at the time of his death: see the Wills Act 1959 (Act 346) s 17.
5 Baugh
v Read (1790) 1 Ves 257 at 260; Lord Walpole v Earl of Cholmondeley (1797) 7 Term Rep 138 at 149; Beddington v
Baumann [1903] AC 13 at 19, HL ; Re Baroness Llanover, Herbert v Freshfield (No 2) [1903] 2 Ch 330 at 335; Re Thompson,
Thompson v Thompson [1906] 2 Ch 199 at 205; Re Berger [1990] Ch 118 at 129, [1989] 1 All ER 591 at 599, CA (Eng) .
Although a will is ambulatory and revocable, it must, when executed, be intended to have immediate effect and cannot be
executed conditionally on a future event happening.
6 Every
will must be construed, with reference to the property comprised in it, to speak and take effect as if it had been executed
immediately before the death of the testator, unless a contrary intention appears by the will: see the Wills Act 1959 s 18. See
also Forse and Hembling's Case (1588) 4 Co Rep 60b; Re Rye's Settlement (1852) 10 Hare 106 at 112; Cooper v Martin (1867)
3 Ch App 47; Re Robinson (1867) LR 1 P & D 384 at 387; Olivant v Wright (1878) 9 Ch D 646 at 650; Beddington v Baumann
[1903] AC 13 at 19, HL; 2 Bl Com (14th Edn) 502; Shep Touch (8th Edn) 401. See also Lord Bindon v Earl of Suffolk (1707) 1 P
Wms 96 at 97 per Lord Cowper LC ; Bunbury v Doran (1875) IR 9 CL 284 at 286, Ex Ch .
7 Where
a question arises as to whether a specific property forms part of the assets of an estate of a deceased person who is a
Muslim in a petition for a letter of administration in the civil High Court see Latifah bte Mat Zin v Rosmawati bte Sharibun [2007]
5 MLJ 101, FC . Whether there was a gift inter vivos or not, that question will be determined in accordance with the Islamic Law
of gift inter vivos or ‘hibah'. The civil court must give effect to it in the grant of a letter of administration, and subsequently, in
distributing the estate.
8 Tompson
v Browne (1835) 3 My & K 32; Patch v Shore (1862) 2 Drew & Sm 589. See also Alexander v Brame (1855) 7 De GM
& G 525 at 530; on appeal sub nom Jeffries v Alexander (1860) 8 HL Cas 594.
Page 3 of 4
(i) Nature and Characteristics of Wills
9 Ie
the Employees Provident Fund Regulations 2001 (PU (A) 409/2001) reg 6. See How Yew Hock (Executor of the estate of
Yee Sow Thoo (decd) v Lembaga Wang Simpanan Pekerja [1996] 2 MLJ 474, FC . It was also held in Krishnaveni a/p
Munusamy & Anor v Bawaneswary a/p R Chinniah & Ors [2013] 10 MLJ 106 (HC) that where a nomination under the Employee
Provident Fund Act 1991 was made, it would not operate as a will. An EPF nomination was an express statutory nomination
which existed independently and was not a will or testamentary disposition. In the instant case, the first nomination is no longer
valid and has ceased to be of legal effect upon the second nomination being made by the deceased.
10 Thorncroft
and Clarke v Lashmar (1862) 2 Sw & Tr 479; Re Robinson (1867) LR 1 P & D 384; Re Halpin (1873) IR 8 Eq 567.
11 Cross
v Cross (1877) 1 LR Ir 389; Towers v Hogan (1889) 23 LR Ir 53. As to declaration of trust see [310]
Reissue) [310.044]–[310.048].
12 Vynior's
13 Re
TRUSTS
(2018
Case (1609) 8 Co Rep 81b at 82a; Re McDonald (1911) 30 NZLR 896.
Heys, Walker v Gaskill [1914] P 192.
[330.003] Delegation of will-making power
Although a testator may properly make a will or codicil conditional upon the assent of a third person to its taking
effect as a testamentary document1, he may not delegate his will-making power to any other person2. There is,
however, no objection to the testator by his will conferring on his executors either a special3 or a general4 power, or
indeed a certain power of any other description5, to select his beneficiaries, provided that the terms of the trust are
conceptually certain, the objects of the power could be ascertained and there is no uncertainty with reference to the
objects6. The court looks at the will as at the date of death and decides at once whether the gift is definite or
indefinite, and if it is indefinite the gift is inoperative7.
1
Re Smith (1869) LR 1 P & D 717, where there was an option to the wife to add a codicil to the will or not.
2 Grimond
v Grimond [1905] AC 124 at 126, HL, per Earl of Halsbury LC ; Houston v Burns [1918] AC 337 at 342, HL, per
Viscount Haldane ; A-G v National Provincial and Union Bank of England [1924] AC 262 at 268, HL, per Viscount Haldane ;
Chichester Diocesan Fund and Board of Finance Inc v Simpson [1944] AC 341 at 348–349, 364, 371, [1944] 2 All ER 60 (HL) .
3 Brown
v Higgs (1801) 8 Ves 561 (affd (1813) 18 Ves 192, HL ); Re Hughes, Hughes v Footner [1921] 2 Ch 208; Re Abrahams’
Will Trusts, Caplan v Abrahams [1969] 1 Ch 463, [1967] 2 All ER 1175.
4 Gibbs
v Rumsey (1813) 2 Ves & B 294; Re Hughes, Hughes v Footner [1921] 2 Ch 208 at 212 per Sargant J .
5 Re
Park, Public Trustee v Armstrong [1932] 1 Ch 580; Re Jones, Public Trustee v Jones [1945] Ch 105. See also Re Manisty's
Settlement, Manisty v Manisty [1974] Ch 17, [1973] 2 All ER 1203; Re Hay's Settlement Trusts [1981] 3 All ER 786, [1982] 1
WLR 202.
6 Re
Chionh Ke Hu (decd) [1964] MLJ 270, where it was held that a provision that ‘30 shares of the estate should be distributed
among such persons professing or practising the Buddhist religion and in such proportions as my executors in their absolute
discretion think fit’ were insufficient to constitute advancement of religion, and as there was no public benefit, no valid charitable
trust was created and as all objects of the power could not be ascertained, there was uncertainty with reference to the objects,
and consequently as no valid private trust was created, there was an intestacy in respect of the 30 shares.
7 Re
Jarman's Estate, Leavers v Clayton (1878) 8 Ch D 584 at 587 per Hall VC .
Page 4 of 4
(i) Nature and Characteristics of Wills
[330.004] Execution of wills outside or within Malaysia; formal validity
A will1 executed outside Malaysia will be regarded as properly executed for the purpose of being admitted to
probate in West Malaysia2, if the execution of the will conforms with:
(1) the provisions of the Wills Act 19593; or
(2) the law of the place where it was executed; or
(3) the law of the testator's domicile at the time of execution; or
(4) the law of the testator's domicile at the time of his death4,
provided that such will is in writing or is a privileged will made under the Wills Act 19595. The Registrar may require
proof by affidavit of an expert of the law of the country in question that the will is a valid testament by the law of that
country6.
A will executed within West Malaysia by a citizen7 will be deemed to be properly executed for the purpose of being
admitted to probate in West Malaysia if it is executed in the manner required by the Wills Act 1959.
A will valid when executed will not be held to be revoked or to have become invalid nor will the construction thereof
be altered by reason only of a subsequent change of domicile of the testator8.
1
For the meaning of ‘will’ see [330.001].
2 For
these purposes, ‘West Malaysia’ has the meaning assigned thereto in the Interpretation Acts 1948 and 1967 (Act 388) s 3
and includes the Federal Territory of Kuala Lumpur: Wills Act 1959 (Act 346) s 2(1). All references to ‘West Malaysia’ in any
written law are to be construed as references to ‘Peninsular Malaysia’: Interpretation (Amendment) Act 1997 (Act A996) s 5(2).
For the meaning of ‘Peninsular Malaysia’, see the Interpretation Acts 1948 and 1967 s 3 (inserted by the Interpretation
(Amendment) Act 1997 s 5(1)(a)).
3 Ie
made after the date of the coming into operation of the Wills Act 1959. As to when the Act came into force see [330.001]
note 6.
4 See
5 Ie
the Wills Act 1959 s 27.
under the Wills Act 1959 s 26: see [330.035].
6 Re
Syed Hussain bin Omar bin Shahab (decd) [1939] MLJ 69. See also RC O 71 r 16.
7 See
the Wills Act 1959 s 28, which applies whatever the domicile may be at the time of making the will or at the time of his
death. This applies as regards movable property and immovable property situate in Malaysia. There is no provision in the Act for
the case where a will is executed in Malaysia by a non-citizen. The formal validity of such will falls to be decided by the common
law conflict rules, namely it will depend on the lex domicilii.
8 See
the Wills Act 1959 s 29.
End of Document