Will written for remuneration, ought to be done by Lawyers

The proposed motion by RWY lawyers was passed unanimously at the recent Malaysian Bar AGM. 

The logic of the Motion is this:-

Lawyers in Malaysia are covered by the Professional Indemnity Insurance (PII). If we are negligent, you can sue us, and if you win; the Insurance will pay you. 

On the other hand, non-lawyer Will-writers are not covered by PII. 

Apparently the Malaysian Bar is aware of complaints by Lawyers that they have received poorly drafted Wills to file Probate or Letters of Administration. Most of the time the beneficiary of the Will, is not even aware that the Will is poorly drafted. And the nature of the Will is such, that we will only know the Will is bad; after the creator is dead; as only when the creator dies, will the Will come into effect and come into attention. 

Most people; after executing a Will; thinks that they are safe, and will not check the Will. So it is too late, by the time we find out that the Will is bad. 

Of cos, RWY is not at all suggesting that lawyers will always get the Will right. In fact lawyers have made mistakes too. But the probability of a Lawyer making mistakes are far lesser than a non-legal Will writer due to the nature of the legal work. 

In addition, (as stated above) we have PII. That way, if the Will is defective, can that defect is caused by a Lawyer, then the beneficiary can sue the Lawyer and get damages via the PII.

So in the unfortunate event that the Will is wrongly drafted by a Lawyer; and that Lawyer is successfully sued for negligence; the beneficiary of the Will may be able to gain some compensation from the PII Insurance. 

The Motion reads:-

Proposed motion calling upon the Government of Malaysia to regulate the will writing enterprises/agencies in Malaysia
(Proposed by Richard Wee Thiam Seng and seconded by Sarah bt Kambali, dated 3 Mar 2011)
Preamble:-

Recognising the fact that writing a Will is a crucial and significant, financial and personal decision that someone may make;

Recognising the need to protect consumers keen in engaging Will Writers in Malaysia;

Recognising the current practise where Will Writers may not be necessarily legally trained.

The Motion

The Malaysian Bar calls for the abolishment of section 38(2) of the Legal Profession Act 1976, effectively disallowing unauthorised persons, as defined in the Legal Profession Act 1976, to drafts wills for remuneration.

*The motion, as amended, was unanimously carried.

Regulate Will Writing Industry

This is a proposed motion to be tabled at the 65th Malaysian Bar AGM on 12th March 2011.

Proposed Motion calling upon the Government of Malaysia to regulate the Will Writing Enterprises in Malaysia.  

Preamble:-

Recognising the fact that writing a Will is a crucial and significant, financial and personal decision that someone may make;

Recognising the need to protect consumers keen in engaging Will Writers in Malaysia;

Recognising the current practise where Will Writers may not be necessarily legally trained.

The Motion:-

The Malaysian Bar calls upon the Government of Malaysia to effectively regulate the Will Writing Industry in Malaysia.

The Malaysian Bar calls upon the Government of Malaysia to impose a rule that a Will Writer ought to have Legal Qualification, as a minimal standard;

Alternatively the Malaysian Bar suggests that the Government of Malaysia conduct Trainings and Courses leading to a Diploma or Certificate in Will Writing, which may be held at our Institutions of Higher Learning; to train the current and future Will Writers.

                 Dated : 3rd March 2011 

Will - Documents living beyond you

Wills are unique. These documents only come alive when the maker of the Will has passed away. Hence these documents lives beyond you.

Whatever drafted on the Will has to be accurate. Once the maker of the Will has passed away, the Executor of the Will would have to decipher what the maker wishes. So, the Will has to be drafted in clear and understandable language. Any ambiguity may lead to unwanted consequences (for example; an ambiguous clause may be declared too vague, and the asset which you wish to donate to a specific beneficiary may not end up with that beneficiary after all).

It is strongly advised that you engage a Solicitor to draft a Will. Inform the Solicitor of all your tangible assets. Inform the Solicitor which asset shall go to who, upon your demise. Be clear with the Solicitor.

It is perhaps best not to have an asset divided to too many people (for example Landed properties should not be divided to too many people). One must also consider if the one asset is divided to too many people, when this beneficiary themselves pass away (and if they pass away without a Will) then your legacy would be in conflict and sometimes in chaos.

In some Wills, the maker gives a House to 5 children. When the maker dies, all 5 Children will be registered as co-owner. But when one of the child themselves passes away AND pass away without a Will; that is where your legacy faces problems. The 3rd generation will face much issues.

Anyway, this is merely an example. Be sure you think beyond the coming generation when deciding who benefits from your Will. It would be beneficial if you ponder of the 3rd generation too.

Wills, Probate & Letter of Administration (Part II)

In our earlier posting we had blogged about Wills & Probate. This is Part II of this series on Wills, Probate & Letters of Administration.

We append below a link to an excellent article by Ms Lee Chooi Peng, a partner at Messrs YH Teh & Quek. She had given a fairly extensive overview about asset management of a deceased, who left without a Will.

We trust you will find the Article, informative and useful.

Happy Reading!

http://www.malaysianbar.org.my/national_young_lawyers/have_your_own_way_with_a_will.html

Wills, Probate & Letter of Administration (Part I)

Just a short note on Wills in Malaysia.

For non-Muslims, once a person passes on and leaves a Will behind, please see a lawyer with that Will as soon as possible. The lawyer would file a Petition into High Court and apply for a legal Document, called Probate.

The Lawyer would have to, inter alia file Affidavits affirmed by the 2 Witnesses to the Will, and also the Affidavit by the Executor/Executrix. All in all, it normally takes around 3-9 months (depending on which High Court you go to) to extract a Probate Order.

There will be a requirement to provide some money as Administration Bond, and that money will be paid into Court. This Bond operates as a quasi undertaking from the Executor/Executrix that he/she will perform their duties as per the Will.

With a Probate, the Will will be given effect and the person named as an Executor (male) of Executrix (female); in the Will, can now proceed to distribute the properties of the deceased as per the Will.

The Executor/Executrix will be a quasi-Trustee, and under the law, the duty expected of that person is onerous. In short the Executor/Executrix must be transparent and must not breach the duties expected of him/her. He/she may be sued in his/her personal capacity if there is a breach.

We will Blog on the Laws on Wills and also Laws governing people who passed on without Wills, in due time.