Last and Testament Will Affirmed In Sarawak

According to Section 2(1) of the Wills Act 1959 defines Will as the intention and declaration made by a testator that he or she desires to distribute his or her property.

An individual is to be advised to do last will and testament so that his estates can be distributed in accordance to the wishes of himself and also to expedite the process of application of probate.

Other than that, a testator also free to appoint an executor or executors to execute the distribution of his estates and/or assets after he passed away besides that a testator also free to choose his beneficiary or beneficiaries and have control over the distribution of his estates and/or assets.

According to Section 2 of the Probate and Administration Act 1959, an Executor is a person appointed by the testator in his will to carry out the will after the testator’s death.

The authority governing the application of Probate in Sarawak are Amanah Raya Berhad and District Office. Amanah Raya Berhad will deal with the application for Probate for non-native and foreigners, whereas the District Office deals with the application for Probate for Malay and native Sarawak.

If a person dies leaving a last will and testament, his executor will proceed to handover the original last will and testament and also original statutory declaration of the two witnesses and also all the relevant forms and documents to the Amanah Raya Berhad in Sarawak for an application for Probate. An individual is advised to appoint an advocates in Sarawak to handle the application for Probate because there are documentation needed to be certified by the advocates and/or the relevant authority.

A last will and testament can include all kinds of movable and immovable properties of the deceased either inside Sarawak or outside Sarawak. The Probate issued by the Amanah Raya Berhad also can state all kinds of movable and immovable properties of the deceased either inside Sarawak or outside Sarawak in accordance to the last will and testament. However, in order for the said Probate to take effect in the state other than Sarawak, an application for resealing of the Probate to the High Court is needed to ensure the Probate is valid to be used to distribute the properties outside Sarawak.

Documents needed to prepare a last will and testament is stated as follows:-

1. IC of the Testator (front and back)
2. IC of the Executor (front and back)
3. IC of the Beneficiary ( front and back)
4. Movable property details
   Including but not limited to the Bank name, branch, account No, EPF No., Vehicle card , Insurance name and policy No., Jewellery, safe box No.
5. Immovable property
   House / vacant land / shop – immovable property details (land title details or sale and purchase agreement)

After a Probate is issued, the Executor can distribute the deceased’s properties in accordance to the last will and testament. The Executor can distribute the movable property on his own by doing application to the relevant authority.

However, for immovable property, the Executor needs to seek for legal service from the advocates to proceed with the distribution of the same. For distribution of immovable property by Probate, the advocates will proceed with the application for transmission of the property from the deceased to the Executor after that to proceed with the registration of the memorandum of transfer of the property from the Executor to the beneficiary in accordance to the last will and testament. The stamp duty for the aforesaid application for transmission and memorandum of transfer is only of nominal charges.

As compared with the distribution of deceased’s estates and/or assets without a last will and testament, the process will be more complicated and conflicts may happen when the next-of-kin of the deceased are not consistent to decide and choose the administrator for the deceased’s estates and/or assets. Some of the next-of-kin may also dispute the fairness in the distribution of properties after that and court action comes in.

In short, it is ideal for an individual to do his last will and testament as soonest as possible.

If you have any questions or require any additional information, please contact our lawyer that you usually deal with.

This article is written by 

Amy Lo Mei Chin
Partner, Lo & Partners