Trust, Wills & Estates

Protecting What Was Meant to Be Passed On

The death of a family member is difficult enough without the added stress of a dispute over the estate. Yet contested probate proceedings are among the most hard-fought cases in the Malaysian courts. Siblings challenge each other over the validity of a parent's will. Executors are accused of failing in their duties. Beneficiaries allege that they have been unfairly excluded. Trusts established years earlier are attacked on grounds of uncertainty or sham. These disputes involve raw emotion, significant assets, and complex legal questions that require experienced handling.

The Wills Act 1959 governs the making of wills in Peninsular Malaysia. A valid will must be in writing, signed by the testator, and witnessed by at least two witnesses present at the same time. The testator must have testamentary capacity: they must understand that they are making a will, know the extent of their property, and comprehend the claims of those who might expect to benefit. A will that does not comply with these formal requirements, or a will made by a person who lacked capacity, is vulnerable to challenge. Allegations of undue influence, where a beneficiary is said to have exerted improper pressure on the testator, are also common grounds for contesting a will.

Where a person dies without leaving a valid will, the estate is distributed in accordance with the Distribution Act 1958. The Act prescribes fixed shares for the surviving spouse, children and parents. The Probate and Administration Act 1959 sets out the procedure for obtaining letters of administration, which authorise the administrator to collect in the estate assets, pay the debts, and distribute the remainder to the rightful beneficiaries. Disputes can arise over who should be appointed as administrator, whether the administrator is properly accounting for the estate, and whether the correct shares have been distributed.

Messrs S.K. Song has an established courtroom record in trust, probate and estate matters. Our lawyers have appeared in contested probate hearings in the High Court, argued applications for the removal of executors and administrators, and acted in claims where the validity of a trust is in question. We also assist clients with the non-contentious side of estate planning: drafting wills that are clear, comprehensive and legally robust, and advising on the use of trusts to protect family assets for future generations.

How We Can Help

We provide the full range of estate and trust services. For individuals, we draft wills, prepare lasting powers of attorney, and advise on estate planning strategies including the use of inter vivos trusts. For executors and administrators, we handle the application for probate or letters of administration, assist with the collection and distribution of estate assets, and advise on compliance with the duties imposed by the Probate and Administration Act 1959. For beneficiaries and interested parties who wish to challenge or defend an estate matter, we provide vigorous courtroom representation in contested proceedings.

Relevant Legislation

• Wills Act 1959 (Act 346)
• Probate and Administration Act 1959 (Act 97)
• Distribution Act 1958 (Act 300)
• Trustees Act 1949 (Act 208)
• Public Trust Corporation Act 1954
• Small Estates (Distribution) Act 1955 (Act 98)
• Evidence Act 1950 (Sections on burden of proof in will disputes)
• Rules of Court 2012 (probate practice)