This article explores the 4 strong reasons on writing wills in Malaysia by foreigners.
As globalization advances and Malaysia solidifies its status as a key business hub in Southeast Asia, more and more foreigners are relocating to Malaysia or investing in Malaysian properties. Some may even view Malaysia as a desirable retirement destination. Due to these reasons, there is a noticeable rise in the ownership of properties by foreigners in Malaysia.
However, while acquiring properties is one aspect, another equally significant consideration is how foreigners manage or deal with their properties in the event of their demise.
This article outlines the top four reasons why foreigners should consider drafting wills in Malaysia:
Reason 1: Ownership Of Immovable Property in Malaysia
When it comes to disposing of a foreigner’s immovable assets in Malaysia, particularly real estate properties. Malaysian laws are applicable. This is due to the fact that immovable properties are governed by laws specific to their location (lex situs).
Drafting a will in Malaysia specifically addressing the distribution of immovable properties within the country undoubtedly simplifies the disposal procedure.
Reason 2: Having a Designated Beneficiary in Mind for Immovable Properties
In Malaysia, when an individual passes away without a will, their immovable property distribution is governed by the Distribution Act 1958, regardless of their domicile at the time of death. Under this act, entitled beneficiaries are determined based on their relationship proximity to the deceased and the portion designated by law. For instance, if a person dies leaving parents and a spouse, each parent would be entitled to half of the estate, while the spouse would inherit the other half.
Therefore, if foreigners have a specific beneficiary in mind for immovable properties, drafting a will in Malaysia to expressly designate the intended beneficiary can simplify the disposal process.
Reason 3: Possessing a Foreign Will drafted by a Foreign Lawyer
While a foreigner may have a will drafted in their home country, for it to be enforceable in Malaysia, it must comply with the provisions of the Malaysian’s Wills Act 1959. However, foreign lawyers may not be well-versed in the requirements of Malaysian laws, posing a risk of the foreign will being invalid or unenforceable in Malaysian courts.
Reason 4: Non-Origination from a Commonwealth Country
In addition to the risks associated with having a foreign will drafted by a foreign lawyer, there’s the additional consideration for individuals not originating from a Commonwealth country.
Typically, to enforce a will, the executors must seek a Grant of Probate from the court for the distribution of assets. For foreigners, this grant may be obtained in their home country and then resealed in Malaysia for enforcement. However, resealing is only possible if the originating country is a Commonwealth country. If not, resealing is not an option.
In such cases, if the foreign will isn’t recognized or enforceable by Malaysian courts, it’s treated as though the foreigner hasn’t made a will at all in the eyes of Malaysian law. As a result, the distribution of the foreigner’s immovable properties follows the provisions of the Distribution Act 1958, potentially deviating from the true intention of the deceased, as mentioned previously.
Conclusion
Based on the reasons stated above, if foreigners desire a more expedited enforcement of their will in Malaysia, particularly when the foreigner possesses immovable properties in the country, a practical and effective approach to consider is creating a separate will dedicated solely to assets situated in Malaysia.
Reference: http://www.commonlii.org/my/legis/consol_act/da19581983244/
Read more on other articles: https://strattonquest.com/2024/04/26/types-of-trademarks-registrable-in-malaysia/