LAWS OF MALAYSIA REPRINT Act 346 WILLS ACT 1959 Incorporating all amendments up to 1 January 2006 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH PERCETAKAN NASIONAL MALAYSIA BHD 2006 2 Laws of Malaysia ACT 346 WILLS ACT 1959 First enacted ... ... ... ... ... ... ... 1959 (F.M. Ord. No. 38 of 1959) Revised ... ... ... ... ... ... ... ... 1988 (Act 346 w.e.f. 6 October 1988) PREVIOUS REPRINT First Reprint ... ... ... ... ... 2001 3 Wills LAWS OF MALAYSIA Act 346 WILLS ACT 1959 ARRANGEMENT OF SECTIONS Section 1. Short title and application 2. Interpretation and application 3. Property disposable by will 4. Will of infant invalid 5. Mode of execution 6. Execution of appointment by will 7. Publication of will not necessary 8. Will not to be invalidated by reason of incompetency of attesting witness 9. Gifts to an attesting witness or to wife or husband of attesting witness to be void 10. Creditor attesting a will charging estate with debts shall be admitted a witness 11. Executor not incompetent to be a witness 12. Will to be revoked by marriage except in certain cases 13. No will to be revoked by presumption from altered circumstances 14. Revocation of will 15. Effect of obliteration, interlineation or alteration 16. Revival of revoked will 17. Subsequent conveyance or other acts not to prevent operation of will 18. Wills shall be construed to speak from the death of the testator 19. Residuary devises or bequests shall include estates comprised in lapsed and void devises or bequests 4 Laws of Malaysia ACT 346 Section 20. General devise or bequest of property shall include property over which the testator has general power of appointment 21. Devise or bequest without words of limitation 22. Construction of words importing want or failure of issue 23. Devise or bequest of property to trustee or executor 24. Devise or bequest of property to trustee without limitation 25. Devises or bequests to children or other issue who leave issue living at the testator's death shall not lapse 26. Privileged wills of soldiers, airmen and sailors 27. Wills executed abroad 28. Wills by citizens executed in Malaysia 29. Change of domicile not to invalidate will 30. Construction of wills 31. (Omitted) 5 Wills LAWS OF MALAYSIA Act 346 WILLS ACT 1959 An Act relating to the law on wills. [1 April 1960, L.N. 55/1960] Short title and application 1. (1) This Act may be cited as the Wills Act 1959. (2) This Act shall apply to the States of Peninsular Malaysia only. Interpretation and application 2. (1) In this Act, unless there is something repugnant in the subject or context-- " p r o p e r t y " 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; "*Peninsular Malaysia" has the meaning assigned thereto in section 3 of the Interpretation Acts 1948 and 1967 [Act 388], and includes the Federal Territory of Kuala Lumpur; *NOTE--All references to "West Malaysia" shall be construed as references to "Peninsular Malaysia"­ see the Interpretation (Amendment) Act 1997 [Act A996], subsection 5(2). 6 Laws of Malaysia ACT 346 "will" means a declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil 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 child. (2) This Act shall not apply to the wills of persons professing the religion of Islam whose testamentary powers shall remain unaffected by anything in this Act contained. Property disposable by will 3.  Except as hereinafter provided, every person of sound mind may devise, bequeath or dispose of by his will, executed in manner hereinafter required, all property which he owns or to which he is entitled either at law or in equity at the time of his death notwithstanding that he may have become entitled to the same subsequently to the execution of the will. Will of infant invalid 4.  No will made by any person under the age of majority shall be valid. Mode of execution 5. (1) No will shall be valid unless it is in writing and executed in manner hereinafter mentioned. (2) Every will shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction; such signature shall be made or acknowledged by the testator as the signature to his will in the presence of two or more witnesses present at the same time, and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary: Provided that every will shall, as far only as regards the position of the signature of the testator, or of the person signing for him as aforesaid, be deemed to be valid under this section if the signature shall be so placed at or after, or following, or under, or beside, 7 Wills or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will; and no such will shall be affected by the circumstance-- (a) that the signature shall not follow or be immediately after the foot or end of the will; (b) that a blank space shall intervene between the concluding word of the will and the signature; (c) that the signature shall be placed among the words of the testimonium clause or of the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses; (d) that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature; or (e) that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature, and the enumeration of the above circumstances shall not restrict the generality of this proviso; but no signature shall be operative to give effect to any disposition or direction which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made. Execution of appointment by will 6. (1) No appointment made by will, in exercise of any power, shall be valid, unless the same is executed in manner hereinbefore required. (2) Every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding that it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity. 8 Laws of Malaysia ACT 346 Publication of will not necessary 7.  Every will executed in manner hereinbefore required shall be valid without any other publication thereof. Will not to be invalidated by reason of incompetency of attesting witness 8.  If any person who attests the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. Gifts to an attesting witness or to wife or husband of attesting witness to be void 9.  If any person attests the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift or appointment of or affecting any property, other than and except charges and directions for the payment of any debt or debts, shall be thereby given or made, such device, legacy, estate, interest, gift or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, interest, gift of appointment mentioned in such will. Creditor attesting a will charging estate with debts shall be admitted a witness 10.  In case by any will any property shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor notwithstanding such charge shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof. Executor not incompetent to be a witness 11.  No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will or a witness to prove the validity or invalidity thereof. 9 Wills Will to be revoked by marriage except in certain cases 12.  Every will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the property thereby appointed would not in default of such appointment pass to his or her heir, executor or administrator or the person entitled in case of his or her intestacy: Provided that a will expressed to be made in contemplation of a marriage shall not be revoked by the solemnization of the marriage contemplated; and this proviso shall apply notwithstanding that the marriage contemplated may be the first, second or subsequent marriage of a person lawfully practising polygamy. No will to be revoked by presumption from altered circumstances 13.  No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances. Revocation of will 14.  No will or any part thereof shall be revoked otherwise than as aforesaid, or by another will executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same. Effect of obliteration, interlineation or alteration 15.  No obliteration, interlineation or other alteration made in any will after the execution thereof shall be valid or have any effect except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration or at the foot or end of or opposite to a memorandum referring to such alteration and written at the end or some other part of the will. 10 Laws of Malaysia ACT 346 Revival of revoked will 16. (1) No will or any part thereof which has been revoked in any manner shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same. (2) When any will which has been partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary be shown. Subsequent conveyance or other acts not to prevent operation of will 17.  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 shall be revoked as aforesaid, shall prevent the operation of the will or codicil with respect to such estate, right, share or interest in such property as the testator shall have power to dispose of by will at t