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Putik Lada: Have your own way with a will

Thursday, 02 April 2009 01:32pm

©The Star (Used by permission)
by Lee Chooi Peng

Not leaving a will means only more heartaches for the bereaved spouse, especially one unaware of the legal quagmire.

A MAN dies without a will, possessed of assets not exceeding RM600,000 including a house.

His widow, a housewife, obtains a distribution order from the Land Office but is surprised to be informed that two-thirds of her late husband’s EPF money will be transferred to the Amanah Raya Bhd (ARB) as trustee for her three minor children.

The widow then enquires with the ARB on the amount that can be withdrawn for the expenses of her three children and is distraught to be informed that piano lessons, swimming lessons, art classes, ballet dance classes and other similar activities are “luxuries” that will not be allowed to be withdrawn from ARB despite the fact that her children have been attending these activities even before the death of her husband.

It is already hard for the children to cope with life without a parent. At the least, their lifestyle and activities should not be drastically changed. Retracting all activities is a drastic change for a child.

Therefore, how could a mother bear to stop her children from attending activities that they have enjoyed and acquired skills from?

The widow is then forced to use her one-third entitlement which is for her personal benefit under the law, for the welfare of her three minor children.

Most probably, she would have exhausted her one-third entitlement by the time her three minor children turn adults. Who could she rely on if her children are not filial to her?

The above are only a few of the many hardships that we may put our loved ones through if we die without a will because sections 3 and 4 of the Small Estates (Distribution) Act 1955 (Small Estates Act) confer jurisdiction on the District Land Administrator (DLA) to act in situations where a person who dies without a will, leaving an estate which consists wholly or partly of immovable property and which does not exceed RM600,000 (small estate).

In this instance, it is a common practice of the DLA to appoint ARB as trustee for beneficiaries who are minors.

Further, no lawyer is entitled to appear on behalf of any party in respect of a small estate except with the permission of the DLA. Hence, lay persons are expected to deal with the relevant authorities all by themselves.

In 2008, the amount of RM600,000 under the Small Estates Act was amended to RM2mil. Though not in force yet, many of us may come under the above category when the amendment comes into force.

In any event, if a person dies without making a will, he is said to have died intestate. His property is then known as his estate, and his children, his “issue.” Section 6 of the Distribution Act 1958 (DA) provides distribution in the following manner if one dies intestate:

Leaving: Entitlement of distribution under DA

(a) spouse only, but no parent and issue – whole estate

(b) issue only, but no spouse or parent – whole estate

(d) spouse and issue – 1/3 to spouse; 2/3 to issue

(e) parent(s) and issue – 1/3 to parent(s); 2/3 to issue

(f) spouse and parent(s) – 1/2 to spouse; 1/2 to parent(s)

(g) spouse, parent(s) and issue – 1/4 to spouse; 1/4 to parent(s) and 1/2 to issue.

For example, if A dies intestate, leaving behind parents, spouse and three children and three houses, all three houses will bear six people’s names in each of the title deeds. Imagine the inconveniences to all six of them and the disputes that may arise in the event of disagreement in dealing with the three houses.

If a person dies leaving no parent, spouse and issue, his estate will go to the following persons in order of priority:

(a) brothers and sisters

(b) grandparents

(d) great grandparents

(e) great grand uncles and grand aunts.

It follows if a person dies leaving no parent, spouse, issue, and any of the above family members, then the whole estate will go to the government.

For the purposes of the DA, the word “child” means a legitimate child and where the deceased has more than one lawful wife, includes a child by such wife, but does not include an adopted child unless the child is adopted under the Adoption Act 1952.

Similarly, the word “parent” means the natural mother or father of a child or the lawful mother or father of a child under the Adoption Act 1952.

As regards divorced spouses, they remain surviving spouses until the divorce order is made absolute.

Section 66(1) of the Law Reform (Marriage and Divorce) Act 1976 also provides that a husband will not be deemed as a surviving spouse with regard to the property of a wife who left without any will at the time of her death and is judicially separated from her husband.

This means if the property belongs to a husband who is judicially separated, his wife would still be entitled in the same way as a surviving spouse as if no judicial separation had been made.

All in all, by making a will, we select our beneficiaries, their shares and entitlement, and this will no doubt minimise disputes among our beneficiaries and loved ones.

Further, if one dies leaving a will, the executor named in the will can directly petition to the court for a grant of probate.

Generally, the steps involved in obtaining a grant of probate are less cumbersome compared with the situation if one dies intestate and family members have to petition for the grant of letters of administration.

Every will is unique because it reflects our personal intention and direction of how we would like our assets to be managed and distributed.

There is no one single will format that fits all. We have to be sure that the person who writes our will truly understands our intention because when the will comes into effect, we are gone. Hence, it is best that we engage a lawyer to prepare our will.

> Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column: a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc.

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