BORNEO Post with the expert help of Rockwills Trustee Bhd, the leading specialist in estate planning having pioneered wills and trust 26 years ago, is publishing a regular Q & A column on estate planning. It will feature questions which readers have in mind but don’t know who to ask:
Question 1: Dear sir, I am a retiree. Few years ago, I wrote a will and signed it in the presence of my two close friends (as witness) who have no beneficiary interests whatsoever in the will. I was told that in the event the writer of the will becomes deceased in future and the will has to be presented to public trustees in order to obtain a letter of administration, the two friends will have to make Statutory Declarations to the effect that they have actually witnessed/attested my signing.
My question are : (i) what happens if one of the witness pre-deceased the writer of the will, and (ii) what happens if one or both witnesses are unwilling to make statutory declaration or their whereabout is unknown?
Rockwills Answer: A will is deemed valid if it fulfilled all the legal requirements under the Wills Act 1959. For (i) above, the executor in your will would be required to produce documentary proof that the witness has passed away.
Similarly, for (ii) above, the executor would need to produce documentary proof of his attempts to locate the witness(es) or proof that the witness(es) is unwilling or not able to make the statutory declaration.
Appointing a trustworthy and suitable executor is important in ensuring that the process of applying for grant of probate, administration and distribution of your assets is carried out smoothly, in accordance with the instructions in the will.
The person appointed as your executor needs to have a fair knowledge in legal, accounting, tax and administration work as the role of an executor requires him to also deal local authorities such as land office, EPF office, Inland Revenue (LHDN), banks, insurance companies, debtors, creditors, Bursa Saham, company secretary and so on.
He should also be meticulous with paperwork and accounting matters to ensure that your estate is administered in an orderly manner to avoid disputes/suspicions amongst your beneficiaries. Sadly, a person with such a multitude of skills is hard to come by.
This is where a trust company that specialises in estate administration services would come in handy. We suggest that you seek advice from a professional estate planner to help you set up your will to ensure mistakes are not made.
Question 2: In View of the above circumstances, I wrote a new will in the office of Amanah Raya Sarawak and the Will was signed in the presence of two officers as witness. I was told that when the time comes for the execution of the will, the two officers, who may have left the office, retired or become deceased, will no longer need to make any Statutory Declarations. My question is, is it so?
Rockwills Answer: Under the Will Act 1949, when the witnesses cannot be located or survive the testator, it will not cause the will to be invalid. When the two officers are no longer in the employment of Amanah Raya Sarawak in the future or have since passed away, probate can still be granted. For more details on the documentation required, we urge you to contact Amanah Raya Sarawak.
For your information, probate can be granted by Amanah Raya Sarawak in Kuching for persons who are domiciled in Kuching, where for any person who is domiciled elsewhere in Sarawak, probate is granted by the district officer who is also a first class magistrate.
We suggest that you consult an experienced estate planner to take this further.
This Q&A Column in published as a joint public service and educational initiative with Rockwills Trustee Bhd. Please email your questions related to estate planning to [email protected] or Rockwills’ training and business development assistant general manager Sam Chan ([email protected]).