WILLS, TRUST DEEDS & POWERS

OF ATTORNEY
 Governing law / statutes
Wills Act 1959
Applicable for non-muslim
However muslims also can make a will
It is call an Iqrar of a person made during his life time with
respect to his property or benefit thereof, to be carried out for
the purposes of charity or for any other purpose permissible
by the Islamic Law, after his death .
For Muslims, only 1/3 of the whole estate may be given away
to non beneficiaries while the balance must be distributed in
accordance with the Islamic Faraid Law, except where the
lawful beneficiaries of the Testator agree otherwise
 What is a Will?
A Will is a declaration in the prescribed form of the
intention of the person making it of the matters which
he wishes to take effect on or after his death, until
which time it is revocable.- (Mellows, the Law of
Succession)
S.2 of the Wills Act 1959- as document where a person
states his intentions as to how his estate to be
administered and distributed after his death and who
is to administer it
Is a declaration of a person intention concerning the
disposition and devolution of his property after his
death to any person of his choice
Is an instrument used by the owner of property to
transfer his interest / estate in the property upon his
death to any person of his choice
 Objectives
To encapsulates the Testators directions in relation to the
administration and distribution of his/her estate.
To ensure the persons you wish would benefit from your estate
will be able to inherit from the same.
A Will helps in expediting the legal process involved in estate
administration as no sureties/security deposits are required prior to
the issuance of the grant of representation. It would also relieve the
Beneficiaries of the Deceased from having to decide on who shall
become the Administrator of the Deceased Testators estate upon
the death of the Testator.
A Will also enables a person to bestow gifts to non-family
members/non heirs as well as various charities and religious
organizations that the Testator may choose.
In summary, having a Will enables a person to plan smooth
transfer of assets to his/her beneficiaries according to his/her
wishes.
What are the advantages of having a will?
Having a will enables you to:
Choose your beneficiaries and how your assets are to be
distributed;
Choose your trustee and executor to administer your
estate;
Set up a testamentary trust for your minor children, heirs
with special needs or charities;
Choose the guardian of your minor children;
Minimize the chances of family disputes over property;
Speed up the distribution process considerably;
Reduce the costs of administering your estate;
Express your wishes for your funeral arrangements/ special
arrangements.
 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;

s.3 Property disposable by Will

every person of sound mind may devise, bequeath or dispose
of by his will, all property which he owns or to which he is
entitled either at law or in equity at the time of his execution
even where property is acquired after the execution of the Will.
 E.g. of property that can be disposed by Will:
Land, building ( where the testator is the owner at the
time of the death)
Property abroad ( a Will disposing a property that is
situated abroad generally is govern by the law of that
country in which that property is situated)
Shares of the company ( members of the Company
have a right to transfer shares to whom so ever they
like unless the AOA otherwise provide)
Insurance policy (life insurance policy taken out by a
person on his own life and for his own benefit, forms
part of his estate and is willable)
 Parties involved
Testator
A person who makes a Will.

Beneficiary
A person who inherits under a Will / or any person
who benefits under a Will- the beneficiary (ies) will
only acquire those property stated in the Will after
the death of the Testator

Executor
The person appointed in a Will to carry out the
testators wishes and instructions / a person who will
attend to the distribution of the will upon the death of
the testator
 - Guardian

If the Testator has minor children, guardian should be appointed.

The guardian should be someone who would be able and
responsible in taking care of the necessities and affairs of the
minor children of the deceased Testator.
The assets belonging to the minor children and/or the maintenance
for their needs would be channeled by the Executor and Trustee to
the guardian as the caretaker.
The Trustee should hold in trust and/or utilize the same in the most
appropriate manner for the benefit of the said children until they
reach the age of majority, whereupon the assets shall then be
transferred to them accordingly.
Any parent who has parental responsibility for his/her child may
appoint one or more individuals to be the childs guardian(s). The
appointment generally takes effect on the Testators death,
provided that there is no surviving parent with parental
responsibility for the child at that time.
 Characteristics of a Will
A Will include :

information on the appointment of an Executor who will

execute the Will,

the beneficiary(ies) to the Will,

allocation of assets to the named beneficiaries

the appointment of guardian for minor beneficiaries (if any),

revocation of earlier Wills,

donation of organs, direction for burials and other special

instructions can also be included in a Will.
Basic requirements of a valid Will in the Wills Act 1959 are- S.5(1) WA
1959:

a) It must be in writing- (either handwritten, type written or printed

word)

b) The wording need not be legal/ formal language- so long as it is

clear on the identification of Testator, executor, beneficiary(ies) and
the various kind of property) it is fine.

c)The testator or (person on behalf of the testator or directed by

testator in the presence of the testator) must sign the Will at the
end or foot of the document.
If the testator can write, his usual signature would be sufficient, if
illiterate or unwell to sign, he may put mark or initial / thumbprint

Nothing must be added below the testator signature. (Anything

written /added below the testator signature is considered not valid
EXCEPT for witness signature, occupation and address
 d) It must contain attestation clause i.e. Statement in a Will that it has
been duly executed in the presence of two witnesses.
There must be at least two or more witnesses present at the same time
(means at the present of the testator but not at the presence of 2 witnesses
each other) to witness and to attest to the signature of the testator.
Sawinder Kaur Fauja Singh ( 1998)1 CLJ 402
Dr. K Shanmuganathan ( by Attorney) v Periasamy Sithambaram Pillay[1994] 2CLJ 225

However the witnesses must not be beneficiaries to the Will nor can their
spouses, otherwise the gift will fail ( i.e. disposition to such person is void)- s. 9
of the WA 1959

In the event of a minor being a beneficiary the Will must appoint 2

administrators to act as Trustees for the minor beneficiary. However where
only 1 administrator is appointed, upon a Testators demise, the Court may
appoint an additional administrator / Trustee for the duration of the
beneficiarys minority.

s. 23 WA 1959 a trustee or Executor can be a beneficiary under the Will as

well so long as he/ she does not witness the Will.
 e) The testator must be of sound of mind and not
under any undue influence during the execution of his
or her Will.

f) The testator making a Will must not be under the age

of majority.
s.4 WA 1959 Any Will by an infant is void.
Thiang Kai Goh v Yee Bee Eng & 4 Ors (2004)1 LNS 382
Udham Singh v. Indar Kaur [1971] 2 MLJ 263
Tho Yow Pew & Anor v. Chua Kooi Hean [2002] 4 CLJ 90

g)During the life time of a Testator, a Will is said to be

ambulatory i.e. it may be revoked or altered
according to the necessary formalities.
 Who can make a Will
a) a person who has attained the age of 18
(Peninsular Malaysia & Sarawak) or 21 in Sabah;

b) of sound mind;

c) acting on his own free will and without coercion;

and

d) not prohibited to administer his property e.g. a

bankrupt so no property in your hands all in DGIs
hands so cannot make a Will
 Who can benefit from the Will
Beneficiaries specified in the Will-
Beneficiaries are person for whose benefit property is held by trustees, executors and personal
representatives for distribution of the deceased estate or under trust /settlement)

If the beneficiaries dies before the testator that such gives merely become part of the residue of
the estate.

Adopted Children
adopted children can be beneficiary, if no will cant be beneficiary ( if not legally adopted)
Same position as step children.

Minor
Can be beneficiary but normally the property will be put under the hand of the trustee 1st until
attain the age of majority ( 2 trustees)

Mental patient
Can be beneficiary, and Court will appoint someone to administer the property during his
disabilities period

Bankrupt
Can be beneficiary, but all the property goes to DGI to handle for the benefit of creditors
 Who cant benefit
Predeceased beneficiaries
Died before the testator
Witness to Will
Those who witnesses the testator signature
Murderer
Murdered Testator after proven guilty
Bedford (1935) Ch 89
Hall v Knight and Bexter (1914)
Divorce
Cant benefit because you are not husband and wife
Decree nisi- the Will is still valid
Decree absolute (final)- no longer husband and wife- the Will is void
Fraud/ coercion
A Will can be invalidated if it was induce by fraud, fear/ coercion.
So the gift can be set aside and it shall form part as residue
 Types of Will
Valid Will- as per definition under s.2 WA 1959

Oral Will- is a Will that is made orally by a Testator and later been reduced
in writing
E.g. Testator made a Will orally during his illness at Hospital, before
witnesses and later the Will was reduced in writing

Simple or general Will -making a non specified disposition of all of the

Testators property both movable and immovable wherever situated to
named beneficiaries. - E.g. not specified prop, to whom and to which
beneficiaries)

Specific Will specific dispositions to named beneficiaries

E.g. Prop A (land) to Tamak
Prop B ( house) to Kedekut etc.

Mutual Wills identical (same/equal) Wills made between spouses which

are identical in nature. Having executed a mutual Will one of them cannot
later unilaterally revoke or vary the Mutual Will. So essentially it becomes
irrevocable.
 Partly specific and partly general certain specific
properties are clearly identified to be bequeathed to
certain beneficiaries while the rest is a general disposition.

Holographic Will- wills entirely written and signed in the

handwriting of the testator. The testator prepare
everything. It is validated without witnesses because it is in
the handwriting of the testator- (but need to prove this)

Privilege Will- s.26 WA 1959- A Will by a member of armed

forces of Malaysia who is in actual military service ( may be
made either in writing/ orally). This Will will take effect
notwithstanding the non-compliance with the formalities
require by regular law applicable to others.
 Codicil
What is codicil?
C is similar to a Will but is supplemental to a Will and
is annexed to a Will in order to add or vary the
contents of the Will or
another document that been prepared or
an addition to a Will, signed and witnessed in the
same way as the original Will. The witnesses may be
different people to those in the original Will.

The purpose of having C?

Not to revoke all the (contents of the Will/document)
and made a new one again
 Residue
What is left of the estate (all that a person
possesses at the time of his death) once all
the specific gifts in the Will have been made
due to the death of beneficiaries before
Testator
 Contents of a Will
i. The opening words: should clearly identify the
testator by his full name, occupation and
description of his present and recent address

ii. There must be a declaration- to declare that

this is his last will e.g. word- Last Will and
Testament

iii. Must appoint Executor / Trustee to administer

the Estate (the name of executor- to be stated in
full, address and occupation as well [can put
more than 2 name and max is 4]
 Iv. Direction on method of disposing testators property/ body etc.
This can be specific/ general disposition
The property so disposed can be movable/ immovable
If joint property- cannot be dispose because joint property will go to
other party upon death of the survivor
Gifts to charities and Residuary gifts if any i.e. what ever is left over
after all the specific gifts

v.) The Will must be voluntarily signed by the testator, unless

illness/ accident/illiteracy prevents it.- can put a mark on it / direct
lawyer or representative to sign on behalf (this normally requires a
lawyers guidance since an invalid signature could invalidate a will)

Vii.) Must be properly executed date with the testators signature,

attestation clause and two witnesses
 Revocation of a Will
A Will can be revoked by the following acts/cirsumstances: s.14 WA 1959
a) Marriage (exception s.12 WA 1959)
A Will is revoked by a marriage or re-marriage (unless the Will is made in
contemplation of a particular marriage). Divorce or separation does not
revoke a Will.
b) Destruction
A Will is revoked when the Testator destroys the Will physically with the
intention of revoking it( e.g. burning, tearing or destroying by the testator)
Accidental or malicious destruction by a third party does not constitute
revocation.
c) A later Will
A subsequent Will would automatically revoke an earlier Will, whether or not
a revocation clause is included in the later Will. The Testator can also revoke a
Will by making a written statement of his intention, signed in the presence of
2 witnesses.
d) Conversion to Islam
A Will is revoked when a Non-Muslim person converts to Islam because the
distribution of his/her estate will automatically follow the Faraid distribution.
 Revival of a revoked Will
S.16 of WA 1959
i. by re-execution ( re executed the Will)
ii.By a codicil ( create other or subsequent Will)
During a lifetime of Testator, a Will is ambulatory i.e. it
may be revoked or altered accordingly to the necessary
formalities
Can a Will be challenged?
Yes
A will may be contested on the grounds that:
the contents have been altered,
that the testators signature is forged, or
that the execution was not properly witnessed.
It may also be alleged that the testator were of unsound mind
or under undue influence at the time the testator made the will.
If the testators soundness of mind may later be called into question, it
is advisable to have doctor examine and certify that the testator still of
sound mind. If there is a challenge, the doctor may be required to
testify accordingly.
Ambiguity or important omissions in the will encourages
dispute.
If the intention is to exclude spouse or any one of the children from
the will, it is advisable to do so expressly.
Giving a justifiable reason for the exclusion will reduce the chances of
a successful contest.
What happens if Mr. A die without a will?

If die intestate:

assets will be distributed according to the formulas set out in the

Distribution Act 1958, and not according to your wishes or the
needs of your family members;
The court will appoint a trustee and executor to administer the
estate, and this may give rise to disputes between family members
or beneficiaries on who should be appointed;
The court will appoint a guardian for the minor children, and the
person appointed may not be your choice or preference;
The distribution process will take longer and cost more, ordinarily
requiring a bond and the appointment of 2 sureties to guarantee
the proper administration of the estate,
further court orders to effect the transfer of real property is needed.
Who will inherit the assets under the Distribution Act 1958?
Section 6 of the Distribution Act 1958 sets out various
scenarios for intestacy and provides a fixed formula for the
distribution of the persons assets.

The following are some examples:

Leaving a spouse, issue and parents: spouse issue parents

Leaving a spouse and parents but no issue: spouse parents
Leaving a spouse and issue but no parents: spouse issue
Leaving issue and parents but no spouse: issue parents
Leaving no spouse, issue or parents, then the following persons
are entitled in accordance of priority: brothers and sisters;
grandparents; uncles and aunts; great grandparents; great
uncles and aunts; government.
 Trust Deeds
Governing Law:
Trustee Act 1949
Trust Corporation?
Company registered under trust Companies Act 1949
and authorized to act as executor and trustee
What is trust?
Trusts means: holding and managing money/
property for people who may not be ready or able to
manage it for themselves e.g. minor
Trust is an obligation binding a person called a trustee
to deal with property in a particular way for benefit
of one / more beneficiaries
 What is trust deeds?
A Trust Deed is a document containing the terms and
conditions of the Trust Account. It enumerates the duties
and responsibilities of a Trustee towards the Trust
Account and is binding on both the Donor and the Trustee
Trust deeds is used in conjunction (combination) with a
Will, it can help/ ensure that a Testators assets are passed
on in accordance with his wishes after or upon his demise
Who is Trustee?- relationship based on trust and confidence
In s.3-
Person who holds property in trust for another
Are the legal owners of the trust property and must deal with it
in the way set out in the trust deed
One who administer the trust can be one or more than one
Upon the trustees demise- the interest held under trust is not
extinguished but devolves(transfer) to the Estate of the deceased
trustee and is held by his personal representatives.- s.23
 Who is Beneficiary?
Anyone who benefits from the property held in trust
Trust property
property/ capital that is put into the trust by the
grantor (i.e. owner of the property = testator in the
Will, or if no Will = owner of property) e.g. land,
buildings, investments, money or other valuable
property.
When do we create trust?
When someone too young to handle affairs
When someone cant handle affairs because of
incapacitated
Under the terms of a Will
When someone dies without Will (intestate)
 Power of Attorney
Governing law:
Power of Attorney Act 1949
Contract Act 1956 (POA is basically a contract
governed by law of contract and agency principles)
In Ahmad bin Salleh (1995) 4 CLJ 197
The Court had discussed the law relating to the POA where
the Judge stated that the law applicable where a POA is
created between the donor and a donee (the person whom
power is conferred) is that of principal and agent (Agency is
fiduciary relation- where principal will appoint an agent to
act on his behalf and subject to his control)
 What is POA?
POA is a delegation of power from a donor to a
donee for purposes of authorizing the donee to
act on the donors behalf (s.135 CA 1950) or
Formal instrument by which one person
empowers another to represent him/act on behalf
for certain purposes
A POA is a deed by which a person confers power
on another to act on behalf of the person granting
the power (donor)
 The power to act is divided into:
General
Specific/special/limited
General
-enables the attorney (donee) to act on all matters for the donor
-the donee will be authorized to do anything which the donor
could have lawfully done
Specific
-restricts the donee /attorney to act on specific transaction/
particular types of transactions- e.g. has authority to sell a house-
so cant mortgage or finance the house
-or limited power- e.g. the donee may have authority only to deal
with one particular transaction
-or limited power in terms of time- where have authority to act for
specific period of time- e.g. whilst donor is in overseas /abroad
only
 In S.3(1) of the POA 1949- there is an implied
requirement that the deed of POA shall be
made in writing between the donor and
donee- because of the word authenticated
The POA can be drafted in separate
agreement or can be part of other agreement-
e.g. loan agreement there is a clause
inserted relating to POA
Both the donor and the donee must have
legal capacity to contract- s.10 +s.11 CA 1950
Who can register a POA document?
Either the Donor or the Donee may register his/her Power of
Attorney document or by any lawyer presenting such document at
the Power of Attorney Registration Office, High Court of Malaya,
Kuala Lumpur or at any Registration Office of the High Court of
Malaya in West Malaysia

What should be the language?

i) A Power of Attorney document must either be in Bahasa Malaysia or
English for the purposes of registration

ii) Translation must be done if the Power of Attorney document is in a

language other than Bahasa Malaysia or English. The translation must
be:
a) certified by an interpreter attached to the court; or
b) translated by a qualified person accompanied with a
Statutory Declaration as to the accuracy of the translation by
such person.
 Content of the POA
Introduction clause
Who is the donor
Who is the donee
(with name, i.c. no and address)

Ratification clause
To ratify in case the donee exceed his power ( but this clause is a
donors choice whether to include it or not)
E.g. a person may claim to be an agent, later a dispute may arise
because the facts show that the person who claims to be the agent
acted without authority or outside the scope of the authority. So
important to see whether the principal has given authority to act if
not expressly then at least impliedly. Even where there has been no
express or implied authority there can be the element of ratification.
If ratify the contract valid- if disagree to ratify- the donee has to be
responsible of his act

Duties of the attorney- either general /specific

 Attestation/Authentication clause- refer to 1st schedule
the signature of the Donor must be witnessed by the following
persons:
(a) within West Malaysia:

i) a Magistrate;
ii) a Justice of the Peace;
iii) a Land Administrator;
iv) a Notary Public;
v) a Commissioner for Oaths;
vi) an Advocate and Solicitor; or
vii) an officer of a company incorporated under any written laws
carrying on the business of banking in West Malaysia

Authentication by the persons above must be in the form prescribed in

the Powers of Attorney Act 1949. The forms are:
- FORM I - Authentication Form for Individual Donor
- FORM II - Authentication Form for Company or Corporation Donor.
 b) outside West Malaysia:
i) a Notary Public;
ii) a Commissioner for Oaths;
iii) a Judge;
iv) a Magistrate;
v) a British Consul or Vice Consul;
vi) a representative of Her Britanic Majesty;
vii) any Consular Officer of Malaysia;
viii) in the case of an instrument executed in the Kingdom of Saudi Arabia,
the Malaysian Pilgrimage Commissioner
ix) in the case of an instrument executed in the Republic of Singapore, an
advocate and solicitor of the Supreme Court of the Republic; or
x) in the case of an instrument executed in the Republic of Singapore, an
officer of a company carrying on the business of banking in Singapore, and
administered by any written law of the Republic.

There is no specific format to be followed as in the Powers of Attorney Act

1949, but there must be some form of authentication by the persons
above to be enclosed in the Power of Attorney document.
 Clause for delegation by attorney
An attorney cannot delegate his power/appoint a substitute to
act in his place unless there is an express provision to this effect
in the instrument by which the powers are created
Apply maxim delegatus non potest delegare- a delegate cannot
sub-delegate
Termination of POA clause/ revocation
a notice of revocation by the Donor is filed in and received by the Donee
(revocation by the donor)
Renunciation by the donee - a notice of renunciation by the Donee is filed
in and received by the Donee
Termination because of death( of either donor/ donee died)
or unsound mind (of the donor /donee)
Bankruptcy of donor and donee (solicitor normally conducted bankruptcy
search on both donor and donee- to ensure both have capacity to enter
into contract) check at DGIs office+ pay fees and they will let us know the
status)
How to register?
Two (2) sets of the Power of Attorney documents must be prepared:
(a) One (1) original copy of the Power of Attorney document (for own
safekeeping); and
(b) A duplicate of the original copy of the Power of Attorney document (to
be filed and deposited in the court).
How to register a revocation?
The following documents must be prepared:
a) One (1) original copy of a Revocation of Power of Attorney document (for
personal safekeeping); and
b) One (1) duplicate copy of a Revocation of Power of Attorney document (to
be filed and deposited in the court);
and
c) The original copy of the Power of Attorney duly registered and endorsed by
the High Court of Malaya.

The POA must be stamped at the Stamp office before it can be registered by
the High Court.