The Malaysian Bar - Letter to the Editor: Malaysian Bar’s response to The Star’s article regarding preparation of wills (published on 21 February 2010)

Letter to the Editor: Malaysian Bar’s response to The Star’s article regarding preparation of wills (published on 21 February 2010)

Thursday, 25 February 2010 01:37pm

We refer to the article entitled “If there’s a will, there’s a way”, published in The Star on 21 February 2010.

The article quoted a will preparer, Jeff Chong, as stating that lawyers “handle a host of legal matters” and therefore “might not be specialists in will writing”, hence suggesting that lawyers might not be as capable as those from Rockwills and other such companies in the preparation of wills.

This statement is inaccurate, misleading and does not furnish adequate contextual information to fully enlighten the public regarding the issues at stake and to provide a proper understanding of the issues relating to the law of succession.

The Malaysian Bar would like to emphasise that will preparers cannot be equated with lawyers, in that a lawyer has to obtain relevant professional qualifications and practical experience before qualifying to become a legal practitioner. Wills have to be drawn up in accordance to applicable laws and there may be areas that require specialised knowledge, which might well be beyond the capability of will writers. As such, the fact that lawyers “handle a host of legal matters” is, in reality, a significant advantage that lawyers have, which will enable them to provide holistic legal advice to address all the pertinent issues in any given scenario.

It is noteworthy that lawyers are also bound by strict rules on ethics to govern professional conduct, and disciplinary proceedings would be instituted if they breach these rules. In addition, lawyers are covered by a mandatory professional indemnity scheme set in place to protect the public in the event of a claim of negligence against a lawyer.

These rules of ethics and protective measures are in place to ensure that a client’s interest, which is paramount, is protected at all times. Such public protection is not available when a will preparer is engaged.

The article compared the processes of obtaining a letter of administration and a grant of probate, and erroneously implied that the former would take much longer and cost more. In practice, the time taken for both applications is essentially the same but varies from state to state, depending on the courts’ schedules. While any person can apply for a letter of administration or grant of probate on his or her own, it would be prudent to engage the services of a lawyer to do so, for the reasons outlined above. There is also an economical and speedy procedure provided under the Small Estates (Distribution) Act 1955 that beneficiaries of an estate can utilise to apply for the distribution of assets.

The Malaysian Bar would like to clarify that only lawyers are qualified to act in all legal matters, including preparation of legal documents. The Legal Profession Act 1976 prohibits any person, other than an advocate and solicitor, to draw up any document or instrument relating to any immovable property. However, wills and other testamentary documents are exempted from the prohibition.

The Malaysian Bar would like to advise members of the public to consider engaging the services of a lawyer in relation to all legal matters, to protect their interest. Furthermore, the public is encouraged to verify with the Bar Council on the qualification of any person who represents himself or herself to be an advocate and solicitor.

Tony Woon
Treasurer
Malaysian Bar

25 February 2010

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