Tutorial 2 Week 3

1. On 1 March 2022, Mr Raymond call you and arranged a meeting to meet you. Mr.
Raymond informed you that he wants to enquire about the will. He informs you that
he’s not well for the past 2 years and he still needs to continue with medical
treatment. He has the intention to only dispose of all of his property to his two sons
from his second marriage.

The purpose of the meeting is to know the importance of creating a will and the
general requirements that need to be fulfilled in order to create a will.

Advise Mr Raymond.

Importance of will – studocu importance of will

Estate planning is the process of making plans and carrying them out throughout a person’s
life in order to accumulate, preserve, and distribute his wealth upon his death according to
his wishes. Wills and trusts are both estate planning tools that can protect a person's estate
by ensuring that his estate is distributed to his preferred beneficiaries. Therefore, everyone
needs to practice estate planning, including Mr Raymond to protect their privacy, wealth
and health.

A will is a legally binding written document that indicates an individual’s wishes to dispose
of his property upon the time of death. It specifies who will receive the property as well as a
legal representative to carry out his will upon the death. Many people think that the
preparation of a will is unnecessary as their property will be disposed to their partner or
children automatically upon their death. They will think that preparing a will is a long and
complex process. Therefore, it is important for Mr Raymond by having a will as they never
know what will occur upon their death. A will act as a protection to their wishes. Without
having a will which is known as intestacy, the process of disposition of the property will be
decided by the government’s laws of intestate succession, including who will be the
beneficiaries, executor and guardian. If there’s no one to be received, their property will be
escheated to the government (Angloinfo, n.d.).

Besides, having a will is important to Mr Raymond as it helps to reduce or prevent family

deputes. It was mention that they became a target of long-lost relatives which trying to get
some benefits from the couple due to their growing wealth. With a will, the couple don’t
have to stress over their mental health and worry that their family members or relatives
might fighting over their property and assets upon their death. Instead of giving the court to
decide who will get their assets, the couple has the right to decide who to be their
beneficiaries and the proportion to distribute their assets, as well as appointing an executor
to manage and allocate their property based on their wishes. After their death, the property
will be distributed according to their will. Therefore, having a will is able to protect their
property and also their loved ones (Mah Weng Kwai, 2020).

Furthermore, Ben and Bella currently had two sons Bobby and Bryan which is currently still
minor, and they plan to have a third child soon, a will is important for them to protect their
kids. Let’s say if any tragedy happens which causes both of them to pass away, a will can
provide an appropriate guardian for their minor children according to Ben and Bella’s
preference, without going through the decisions by the court system. For example, they can
appoint one of their siblings to act as the legal guardian. The guardian will manage their
property on behalf of the children until they reach 18 or above, which is the age of majority.
Without having a will, the court system will decide who to get their assets, as well as who to
raise their minor children. In order to protect their beloved children, having a will is
important
for Ben and Bella (Suzeorman, 2019).

In addition, trust is a legal relationship that allows one party to transfer his property and
income generated from the property to another party. It can be set up in a variety of ways,
and it can decide how and when assets are distributed to their preferred beneficiaries.
Unlike a will, a trust takes effect immediately, whether before, during, or after death.
Therefore, having trust is also crucial to Ben and Bella. The couple can appoint a trustee to
manage their property assets or even their affairs in case Ben or Bella had an accident.

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HUMAN RIGHTS AND LEGAL RESEARCH CENTRE – 28 April 2018

1. A Will maintains family peace

It is not a disputed fact that once a testator drafts a Will the must reigns in the family. This is
because the valid Will provide the legal grounds for the members of the family who are the
beneficiaries from the hands of the bad faith uncles and aunts. Once a Will is drafted,
everybody in the family will know his or her own share in the family property. Thus Wills are
very important since there is the avoidance of the family conflict patterning to the sharing
of property.

2. Drafting a Will leads to administrative conveniences

The cheap administration will be in the way that since the executor will not to go to court in
order to obtain letters of administration, follow the intestate succession procedures, no
expenses such as stamp duty tax and the executor will not also be expected to be paying the
five percent tax of the total estate of the decease to the state. Hence once a Will is drafted,
there will not be unnecessary spending

When it comes to the administrative convenience, it will be very simple for the executor to
even start managing the property from the date the testator dies with just the grants of a
probate to confirm his authority. This is because his or her rights are bestowed on him or
her by the Will unlike when somebody dies intestate where there will be need for the
administrator to go the court for the grants of letters of administration. Thus drafting a Will
is very important to our families and to the society.
 3. Drafting a Will helps the testator to express his love for those who cares for him
in his life time

The practical example of this point is that if you are sick and all your children abandons you
and the child of your friend or your friend keep on taking care of you for many years and
helping you do everything. It is but normal that you need to compensate that your friend or
to show appreciation to the one who cares for when you were sick. To show this love, you
must include that your friend in the Will since if not included, your friend will not have legal
grounds to also enjoy from the property after your death. Therefore, the functions of
drawing a Will is important in demonstrate generosity

4. Testamentary guardians are also appointed in a Will.

The functions of living a Will or the importance of living a Will toward the minors or the
incapable persons is that the testator will have the chances to appoint those who can take
care of them. For example, if you have children who are still minors and they cannot take
care of themselves you can appoint the guardian who can be taking care of them in the Will.
It is worthy to note that once the minors reach the age of discretion the responsibility of the
guardianship will automatically be acquitted. Thus one of the functions of a Will is to
appoint testamentary guardian who can take care of the minors in the family of the testator

5. A Will help to limit burial problem

Problems always arise in our society patterning to the burial issues of the decease. In order
to limit this problems, it very important to draft a Will and give the direction or your wishes
in relation to your dead body. For example, the testator may during his or her life time
request that his lifeless body should be used for research by scientist. Though this
expression is not legally binding since the family can still decide otherwise.

The second scenario is that the testator can state the place in which he wishes that
his body should be laid be to rest, he can also choose the man of God to officiate his burial
and the church. Thus with this, the functions of living a Will is important in order to avoid
the family problems and the problems in our society arising from the decease body and the
burial issues

6. Drafting a Will is a big step in limiting or avoiding the rule of intestacy.

Since writing a Will is a foreign tradition within the African continent, failing to write it and
when the problems arises from the sharing of the property, the decease property will be
shared by the court order taking into consideration the provision of laid down in the
Administration of Estate Act 1925. This provisions are to the fact that when the decease dies
intestate, the property will pass to the next of kin. The problem here is that the next of kin
may be the one that the decease person did not love or whom the decease did not like to
hand over his or her property to him or her. Thus writing a Will is important so as to appoint
but the person whom you like to take care of your family and also manages your property.
From the above functions of a Will to our families and to our society, it is clear that we
ought to draft a Will so as to enjoy its importance. Some people failed to understand the
functions of living a Will in our society because of ignorance toward this concept of
documenting their afterlife wishes. We should take upon ourselves to educate the
population about the functions of a Will or the functions of living a Will.

2. Discuss the characteristic of a Will with reference to decided cases or journals and
articles.

Halsbury’s Law of Malaysia - Wills, Probate, Administration and Succession (Volume 11(2)
(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's death, but it may also be made for the purpose of appointing
executors 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
his, 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 manner. 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 made. On his death, it crystallises and takes effect as an appointment, disposition
or otherwise, according to its tenor.

Muhammad Mifzal – ‘characteristic of will’

Characteristic of will
1. The will must be in written form - Not in audio or video in order to make the will
become valid.

2. The will need to be signed by the testator - To make sure that the will are written
down by the testator

3. Testator must have 2 witnesses during signing the will - To make sure later on of
testator is writing down a valid will before his/her death

4. Testator must be of sound mind & not under influence- For not to make any mistake
during distribution of assets that may create confusion later

5. The will will cover all the assets of testator - Example; house, land, vehicles, shares
and more also way to be distributed

6. The will cannot restrict the testator’s power over his assets and only take effect after
his death - Will only works when the testator is death as a guideline to manage all of
his assets