By Peter Lee
Recently, a family approached me to ask whether their elderly mother could prepare a will. Naturally, my first question was, “Where is your mother?”
They explained that she was currently residing in a nursing home and unable to be present. From their description, it quickly became apparent that she no longer had the mental capacity to comprehend what was being explained to her.
At that point, I had to break the difficult news: it would not be possible for their mother to prepare a will.
One of the key legal requirements for a valid will is testamentary capacity—the person must be of sound mind and fully understand the nature and consequences of the document they are signing. Sadly, in this case, that requirement could no longer be fulfilled.
I went on to explain what would happen next.
If someone passes away without a valid will, their estate falls under the rules of intestacy. This means the family must apply to the court for a Letter of Administration (L.A.), a legal process where one or more Administrators are appointed to manage and distribute the estate.
To proceed with the application, all legal beneficiaries must first give their unanimous consent to the appointment of the Administrators. In this case, that included the surviving spouse and five children.
However, there was another requirement that caught the family off guard.
I told them that they would also need to provide the death certificates of their mother’s parents.
They were surprised. Their mother’s parents had died decades ago long before she was even an adult and the family didn’t know their full names, let alone have any documents.
I explained why this was necessary.
Under the Malaysian Distribution Act 1958 (as amended in 1997), if a person dies without a will and their parents are still alive, the estate is distributed as follows:
- ¼ to the parents
- ¼ to the spouse
- ½ to the children
But if the parents have predeceased the deceased, the estate is distributed differently:
- ⅓ to the spouse
- ⅔ to the children
So, to prove that the parents are no longer living—and to ensure the estate is distributed correctly—death certificates are required. If these are not readily available, the family may apply for them using an affidavit of the next of kin. An Affidavit of the Next of Kin is a sworn written statement made by next-of-kin or a person with vested interest in the deceased’s estate confirming the death of the individual whose death certificate is unavailable.
Once all beneficiaries have consented and the necessary documents are provided, the court will also require the appointment of two guarantors. These individuals must offer a financial guarantee to ensure that the estate is administered honestly and in accordance with the law. This safeguard is vital to protect against the risk of an Administrator mishandling or misappropriating the estate.
Only after all these conditions are met will the estate be distributed according to the law.
This case is just one of many situations I’ve encountered where families are left to deal with complicated legal procedures because a loved one, due to mental incapacity, was unable to execute a will in time.
The process can be burdensome, especially when key documents like death certificates are missing or difficult to obtain. What could have been a straightforward matter becomes a stressful and drawn-out legal exercise.
And yet, all of this could have been avoided with one simple step:
Making a will while still mentally sound.
A will allows you to:
- Choose your own Executors or Trustees
- Appoint guardians for your minor children
- Decide exactly how your estate will be distributed according to your wishes.
The best time to prepare a will is not when you’re unwell, unsure, or in decline.
The best time is now while you’re of sound mind and able to make clear, informed decisions.
Because in the end, all we truly have is one moment in time.