Categories: PlanningPublished On: October 30, 20214.3 min read
Shamlan A/L Shunmuganathan

Having an immovable property in Malaysia as well as being domiciled in Malaysia are both pre-requisite for a foreigner to make a Will in Malaysia. These requirements have become a practical norm for lawyers anytime they are approached by a foreigner to form a Will in Malaysia, something that they always are looked out for.

When it comes to these requirements, however, there is no legislation that addresses these issues. At this juncture, it is preferable to look at the Wills Act 1959 (Act 346) which outlines the requirements for making a Will which can be found in Sections 3 and 4 of the Act, where any person who is of sound mind, and has attained the age of majority may devise, bequeath or dispose of by his Will. Only these two requirements are specified in the Act, and no other statute governing estates in Malaysia even implies that foreigners must meet the aforementioned conditions. The bottom line is that as long as these two elements are met, a Will is legitimate and can be made for anyone, regardless of where they live.

This may then result in one asking ‘what happens if a foreigner died domicile abroad yet leaving his Will in Malaysia in respect of the property situated therein?’ In this situation, jurisdiction will come as an issue whether the Malaysian court has absolute jurisdiction in issuing a grant of probate over the law of the country of the deceased’s domicile at the time of death. Usually, Will made abroad must first obtain a grant of probate from the domicile court, before it can be resealed in Malaysia through application to the Malaysian High Court. In the current case, however, the representatives should get an affidavit from a legal expert in the country in question stating that the Will is a legitimate testament under the law of that country. Through this procedure, you can be certain that your Will has been accepted as legally binding.

As a result of this problem and the complexities associated with obtaining a grant of probate are one of the many reasons why Malaysian lawyer ensures that foreigners who wish to make a Will are domiciled in Malaysia as this is to prevent further complications. The consultant is highly urged not to prepare an international Will without the counsel of a lawyer in the suitable jurisdiction when advising or preparing a Will for a testator with a foreign domicile or who owns immovable property abroad. As previously said, this is due to the fact that creating an international Will is an extremely specialised matter requiring only the guidance of experts.

About the Author: Shamlan A/L Shunmuganathan
Shamilan is a law student studying at the Nothern University of Malaysia. He is currently in his second last semester until he graduates.