Banyan Consulting - Will Frequently asked questions

Banyan Consulting

Banyan Consulting

Will - Frequently Asked Questions

1. What is the legal requirements for making a will?

A: The will maker (testator) must have reached the age of majority i.e. 18 years old (S4 of Will Act 1959) and have a sound mind.

2. What are the requirement of an Executor?

A: An Executor must be (i) willing to act (ii) able to act and (iii) reach the age of 21 years old (not 18) (S36(2) Trustees Act 1949, O71r27(5) Rules of High Court 1980).

3. Who can be an Executor?

A: An Executor can be the Testator's spouse, children, relatives, friends, professionals and banks.

4. Can a Beneficiary be an Executor?

A: Yes.

5. When do you need a Trustee?

A: When a beneficiary is less than 18 years old.

6. Can an Executor be a Trustee?

A: Yes.

7. When do I need to have a Guardian in my will?

A: Your spouse is automatically a Guardian. You need a Guardian when a Beneficiary is less that 21 years old (for non-Muslim) (S2(a)(ii) Guardianship of Infants Act 1961. For muslim, the age requirement is 18 (S2(a)(i) Guardianship of Infants Act 1961). You need to appoint another person beside your spouse to act as a Guardian (alternative).

8. Who will be Beneficiary in my will?

A: You are free to have your Beneficiary. He/she can be your spouse, children, parents, relatives, friend, charitable organization.

9. Who can be my Witness?

A: You need two (2) witnesses. A witness must be able to see and realize that he witnesses the signing of a document. He cannot be the Beneficiary of the will or spouse of the Testator.

10. What is the consequence if a Beneficiary becomes a witness of a will?

A: He will not get anything under the will. The will is still valid.

11. What is the effect of marriage on a will?

A: A marriage will revoke a will. However, if a will is made in contemplation of a marriage (must be stated in the will), the will remains valid.

12. What is the effect of divorce on a will?

A: The ex-spouse has the rights to the Testator's estate. If the Testator states that if his spouse divorce with him, she will not be entitled, then her rights are revoked. It is advisable to make a new will after divorce.

13. Who are the persons entitled as of right the estate of a deceased without a will?

A: According to the Distribution Act 1958, three (3) group of persons are entitled to the deceased's estate in case of intestacy (without will). They are (a) Spouse (b) Issues (Children or grandchildren) and (c) parents.

The distribution permutation is as follows:-

Spouse

Issues

Parents

1/3

2/3

1/2

2/3

1/3

1/4

1/2

1/4

14. If a person died intestate (without a will) and he has no spouse, issue or parent, will his estate go to the government?

A: Pursuant to S6(1)(i) Distribution Act 1958, if an intestate dies leaving no spouse, issue, parent or parents, the whole of the estate of the intestate shall be held on trusts for the following persons living at the death of the intestate and in the following order and manner, namely:-

a. on trusts for the brothers and sisters of the intestate in equal shares; but if no person takes an absolutely vested interest under such trust, then

b. on trusts for the grandparents of the intestate, and if more than one survive the intestate in equal shares absolutely; but if there are no grandparents surviving, then

c. on trusts for the uncles and aunts of the intestate in equal shares; but if no persons take an absolutely vested interest under such trusts, then

d. on trusts for the great grandparents of the intestate and if more than one survive the intestate in equal shares absolutely; but if there are no such great grandparents surviving, then

e. on trusts for great grand uncles and great grand aunts of the intestate in equal shares.

In default of any person taking an absolute interest under the foregoing provisions, the Government shall be entitled to the whole of the estate except insofar as the same consists of land.

You may see that only when one exhausted the whole list (a) to (e), then the estate becomes bona vacantia namely it goes to the Government.

You may put in your will that your beneficiaries are entitled to your shares in the business or company. However, this does not solve the business/company problem per se when you were not around.

For further understanding of Business Continuation Agreement, please call

Tel : 012-7116955 or

email: banyan88@gmail.com