1. WILLS AND WILL PLANNING
Masters in Financial Planning
Retirement & Estate Planning
WILLS AND WILL PLANNING By
Associate Professor Dr. GholamReza Zandi

2. INTRODUCTION
Estate planning is more than just writing a will as there is a process that a financial planner is required to go through with the client. Even if the client requires only a will to be written, there are many aspects of will writing that requires proper planning to ensure that it a functional will ensuring that the instructions stated in the will is carried out.
Financial Planner must highlight important aspects in will writing such as funding for debt cancellation, allowance to guardian of minor children and the costs of administration of the estate by the executor, are to be discussed and highlighted to the clients.
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3. Definition
A Will is a declaration in prescribed form of the intention of the person making it of the matters which he wishes to take effect on or after his death, until which time it is revocable. (Mellows: The Law of Succession)
Section 2 of the Will Act 1959 defines a will as "a declaration intended to have legal effect of the intentions of a testator with respect to the property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil and an appointment by Will or by writing in the nature of a Will in exercise of a power and also a disposition by Will or testament of the guardianship, custody and tuition of any child".
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4. Definition
For Muslim, Muslim Wills Enactment (Selangor) 1999 defined Will as an "Iqrar of a person made during his life time with respect to his property or benefit thereof, to be carried out for the purposes of charity or for any other purposes permissible by the Islamic Law, after his death“.
The Act further specifies that "it shall not apply to the Wills of person professing the Muslim religion whose testamentary powers shall remain unaffected by anything in this Act contained".
Therefore, a will is a legal instrument used by a person to distribute his wealth to his beneficiaries upon his death.
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5. TYPE OF WILLS INDIVIDUAL WILLS MUTUAL WILLS JOINT WILL PRIVILEGED WILL
ISLAMIC WILL (WASIAT)
HOLOGRAPHIC WILL
LIVING WILL
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6. INDIVIDUAL WILLS
It is the most popular type of will written by an individual. It allows the testator to state, among others, the following:
The right to appoint executor(s) and trustee(s)
The right to name persons to receive the gift in the will and to state when and how the beneficiary is to receive the gift
The right to appoint guardian for the testator's minor children
The right to give instruction the executor with regards to the assets to be used for payment of debts and liabilities
The Wills Act 1959 would govern the validity of such a will.
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7. MUTUAL WILLS
It is where 2 persons or more write their wills in one document (where it is a joint will) or in separate documents (in separate individual wills).
The terms of the wills are the same and confer reciprocal benefits to each testator and their common beneficiaries such as their children. The mutual wills contain an agreement between the parties that during the lifetime of each other, they cannot revoke their wills without the consent of the other testator.
Therefore, mutual wills can be revoked with the consent of the other testator but upon death of a joint testator the mutual will becomes irrevocable. If the surviving testator revokes it, he will be subjected to a breach of contract or breach of trust by the beneficiaries.
The Wills Act 1959 would govern the validity of such a will.
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8. JOINT WILL
It is where 2 persons write their wills in one document. Essentially, it is 2 wills in one document. Usually it is used by husband and wife. Upon death of one person, probate is applied for the deceased and the will can still be used for the remaining person.
It is not recommended because it no longer provides confidentiality for the surviving person when Probate is applied for the first person.
The Wills Act 1959 would govern the validity of such a will.
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9. PRIVILEGED WILL
This type of Will is governed under Section 26 of the Wills Act 1959.
It applies only to:
members of the armed forces of Malaysia being in actual military service (this would mean at a time of war), and
a mariner or seaman (including a member of the naval forces of Malaysia) being at sea.
Privileged wills need not be in writing or signed by the client or attested by 2 witnesses.
Such a will, as like individual wills, allows for the distribution of his assets and/or of the appointment guardian, custody and tuition of a child.
A privileged will no longer will be valid if the testator survives the expiry of 1 month.
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10. ISLAMIC WILL (WASIAT) The Wills Act 1959 does not apply for Islamic wills and Syariah law governs creation of Islamic wills and law of succession. In some states such as the Muslim Wills Enactment (Selangor) 1999, Muslim Wills (Negeri Sembilan) Enactment of 2004 and the Muslim Wills (Malacca) Enactment of 2005 governs the validity of a Muslim will written in Selangor. Muslims are allowed only to dispose up to 1/3 of the estate to non-specified heirs at the time of his death. The remaining 2/3 shall be distributed according to Islamic law to specified heirs under Faraid.
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11. HOLOGRAPHIC WILL & LIVING WILL
It is a handwritten will and signed by the testator but without the attestation of witnesses. Such will is not recognized in Malaysia as all wills must comply with Wills Act 1959.
LIVING WILL:
It is a legal document that a person uses to make known his wishes regarding life prolonging medical treatments. It can also be referred to as an advance directive, health care directive, or a physician's directive. It is not recognized in Malaysia.
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12. LAWS OF TESTACY AND INTESTACY
When a person passes away, his estate can be categorized as:
Testate - where there is a valid will that distribute the entire estate of the testator.
Intestate - where there is no valid will and the distribution of the estate is according to the intestacy laws.
Partial intestacy - where there is a valid will but it does not distribute the entire estate but partially. Assets in the will are to be distributed according to the will and the remainder according to the intestacy law.
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13. The Client's Financial Status
Wills Act 1959 / Islamic law
Proving executor (who is willing and able
executor) makes the application;
Application for Grant of Probate is made to clothe the executor with authority and to determine the validity of the will;
Distribution is according to the terms of the will to the beneficiaries.
If there is a non-proving executor, the Administrator (who is unanimously appointed by the beneficiaries and approved by the court) makes the application for Letters of Administration with Will Annexed. Distribution is according to the will.
Distribution Act 1958
Intestate Succession Ordinance 1960
Faraid distribution
Administrator (who is unanimously appointed by the beneficiaries and approved by the court) makes the application;
Application for Letters of Administration is made to clothe him with authority;
Administration Bond provided by 2 sureties are required (note - see Administration Bond below);
Distribution is according to intestate laws/Faraid
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14. LAW OF INTESTACY
ADMINISTRATION BOND BY 2 SURETIES:
The Administrator to obtain Administration Bond when there is an application for:
LETTERS OF ADMINISTRATION ; authority given under the approval of court for the administration of an estate of a person who has died without leaving behind a Will.
Letters of Administration with Will Annexed; grant of Court given to an Administrator to administer the estate of a testator who has appointed an Executor but who did not take up his appointment because he was unable (deceased) or unwilling to do so.
Letters of Administration de Bonis Non; it is used where, following a grant the executor or administrator dies without completing the administration of the estate. It is necessary:
a) on the death of the sole or last surviving administrator where there remains part of the estate unadministered, or
b) on the death of the sole or last surviving executor where the chain of representation is broken and part of the estate remains unadministered.
Letters of Administration Pendente Lite: an interim grant effective for a limited time, for example, while the validity of a will is being contested.
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15. Administration Bond
Where there is a proving executor applying for Probate, there is no need to provide an Administration Bond.
Administration Bond is provided by 2 persons and the amount shall be based on the gross estate value of the deceased. The purpose of Administration Bond is to protect the creditors of the estate and the beneficiaries against the Administrator who may abscond with the assets of the estate.
"Gross value of the estate" as defined under Order 71 Rule 2, Rules of the High Court 1980 is taken to mean the "value of the estate without deduction of debts, encumbrances, funeral expenses and estate duty". If this cannot be complied, application has to be made to the Court to dispense with this requirement.
Probate - legal process of proving the will and settling a testate estate of the testator.
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16. Administration Bond
There is no need for an Administration Bond where under s.35 Probate and Administration Act 1959:
The gross estate value is RM50,000 or lower; or
The Administrator is the sole beneficiary of the estate; or
A trust corporation registered under the Trust Companies Act 1949 is appointed as the Administrator; or
The Court grants a waiver exercisable at the discretion of the Court.
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17. SUMMARY ADMINISTRATION
In order to distribute assets of "small estates" the beneficiaries are entitled to make an application for summary administration to either the District Land Administrator OR the public trustee, Amanah Raya Berhad.
An estate can be summarily administered without the need to obtain either Probate or Letters of Administration from the High Court. This is because the Public Trust Corporation Act 1995 and the Small Estates (Distribution) Act 1955 empowers the authorities (as stated above) to order the distribution of the deceased's estate to his creditors and beneficiaries.
Summary administration is designed to allow the beneficiaries to make an application directly to the relevant authorities without the need to engage a lawyer and be subjected to the court process.
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18. SUMMARY ADMINISTRATION
Application for Distribution Order is made to the District Land Administrator (DLA)
DLA has exclusive jurisdiction in the administration of intestate small estates
Value of gross estate must not exceed RM2,000,000
The estate consists wholly of immovable assets or partially immovable assets
The estate must be intestate
The DLA of the district where the greater part in value of the property is situated has exclusive jurisdiction to deal with the distribution and administration of the whole estate wherever situated but the Director of Lands and Mines may transfer the petition to the DLA in another district if it can be shown that such a transfer would be to the general convenience of the parties involved and it would be expedite the administration process.
No administration bond is required.
Intestate distribution is according to the Distribution Act 1958 or Intestate Succession Ordinance 1960 or Islamic law
Application is made to Amanah Raya Berhad (ARB) being the public trustee of Malaysia
Value of gross estate must not exceed RM2,000,000
The estate consists of only movable assets
The estate can be testate or intestate
No administration bond is required.
Intestate distribution is according to the Distribution Act 1958 or Intestate Succession Ordinance 1960 or Islamic law
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19. INTESTACY LAW OF DISTRIBUTION ACT 1958
Where a non-Muslim dies intestate in Sarawak and West Malaysia, his estate will be distributed according to the Act as follows:
INTESTATE LEAVES SURVIVING ENTITLEMENT TO ESTATE
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20. INTESTACY LAW
The following person(s) are entitled in accordance to priority when an intestate died
without leaving a surviving spouse, child and parent:
Brothers and sisters
Grandparents
Uncles and aunts
Great grandparents
Great uncles and aunts
Government
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21. The Degrees Are Shown Up To The Sixth
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22. LAW OF TESTACY FEATURES OF A WILL FOR NON-MUSLIMS
From the definition of a will, the following are observed:
Not limited to distribution of assets
A declaration of intention
Effective only upon death
Must be in prescribed form
Revocability before death

23. Not Limited To Distribution Of Assets
Besides distributing assets of the estate to the beneficiaries, a will is also used for the following purposes:
Appointment of executors and trustees
Appointment of guardians
Revocation of an earlier will
Distribution of assets
Specific instructions regarding payment of debts and liabilities
Stating reasons not to provide for dependents
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24. A Declaration Of Intention
A will written only declares the intention of the testator where it is not binding on the testator during his lifetime. This would allow him to retain the power of disposition and control during his lifetime. He has outright ownership before his death. This also means that he can acquire more assets or dispose the assets during his lifetime.
Where the estate is insolvent (as there are more debts than assets), the beneficiaries are not liable for the debts of the deceased and the beneficiaries will not be receive their inheritance.
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25. Effective Only Upon Death
As mentioned above, during the lifetime of the testator the beneficiaries have no interest whatsoever in the testator's estate.
The assets that are to be distributed according to-the will shall be all those assets (where the testator has an outright ownership) that are acquired in the name of the testator or where he has possession.
Where the testator holds the assets as a trustee, he cannot distribute the assets to his own beneficiaries but it must be dealt with according to the terms of the trust.
Do note that the testator can also state in his will to distribute asset that he may inherit as a beneficiary or where he is a residuary beneficiary and where he has future interests. So long as the assets or legal or equitable interest belongs to the testator at his death, he can effectively distribute it to his beneficiary even though at the time of writing the will the asset did not belong to him yet.
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26. CONTENTS OF A WILL Opening Clause Revocation of previous wills
Appointment of Executors
Appointment of Trustee
Appointment of Guardian
Asset distribution
Funeral arrangements
Terms of endearment - loving words of encouragement to the beneficiaries can be stated.
Definition of "children" in the will
Commorientes survivorship clause)
Reasons to exclude dependents or specific persons in the will
Testamentary Trust
Residue
Testimonium clause - states that the testator is signing in the presence of the witnesses.
Attestation Clause - where the witnesses attest that the will is signed by the testator in their presence.
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27. CONTENTS OF A WILL
Opening Clause - this clause identifies the testator stating his name, NRIC number, address and date of birth. The date which the testator signs his will is also stated in this clause to determine whether this will is the latest will or not.
Revocation of previous wills - A clause stating the revocation of earlier wills and testamentary disposition made previously by the testator. This clause is stated even if the testator does not have any previous will.
Appointment of Executors - this clause is important to ensure that Probate is obtained instead of having the need to apply for Letters of Administration with Will Annexed. The appointed executor can be a person or trust corporation registered under the Trust Companies Act A minimum of 1 person can be appointed as an executor and a maximum of 4 persons can be appointed as joint executors under the Probate and Administration Act However, if there is an infant beneficiary, the Court may appoint one more executor to the original personal executor (i.e. not being a trust corporation).
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28. CONTENTS OF A WILL Who is an executor?
An executor is the person or trust company registered under the Trust Companies Act 1949, who is appointed by the testator to carry out the terms of the will. The responsibility of the executor is the administration of the estate until the final distribution of the assets is made to the beneficiaries.
What are the duties of an executor?
Locate the will and prepare a list of assets and liabilities;
Make funeral arrangements;
Apply for a Grant of Probate;
Call in your assets from various institutions and relevant authorities;
Pay debts including unpaid taxes- see s.32 Trustee Act 1949 below;
Prepare a Statement of Account; and
Distribute assets according to the will.
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29. CONTENTS OF A WILL
Appointment of Trustee - this is required when there are minor beneficiaries or where there is a testamentary trust created in the will. Where there are minor beneficiaries, the appointment of 2 trustees are required. A trustee is entrusted to manage the trust assets until the beneficiary reaches the age of majority or is able to do so himself or until the end of the trust period.
Appointment of Guardian - the testator may appoint a guardian of his choice for
his infant children in the event of his spouse predeceasing him or both were to go together.
The appointment as guardian will end when the child attains the age of 21 years old (s.2(2) Guardianship of infants Act 1961). A person is eligible to be appointed as guardian when he attains the age of 21 years old.
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30. CONTENTS OF A WILL
Asset distribution - the testator can state specific assets to be given to a particular beneficiary or state in general the assets of the estate (without stating the specific assets) are to be distributed to several beneficiaries.
Funeral arrangements - this can be included in the will where the testator states his preference, whether burial or cremation and according to his desired rites. This however is not recommended as it is not practical to do so. It is normal that the will is read to the beneficiaries a few days or weeks after the funeral and unlikely the executor would have access to the will earlier.
Terms of endearment - loving words of encouragement to the beneficiaries can be stated.
Definition of "children" in the will - where the will states "children" in general, it is recommended that the testator defines the inclusive or exclusion of illegitimate children, adopted children and children en ventre sa mere (these are children who are conceived but not born at the time of the testator's death may not qualify as children unless a provision for the unborn child is provided. The inclusion of children en ventre sa mere is only applicable for male testators).
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31. CONTENTS OF A WILL
Commorientes fsurvivorship clause) - inserted as part of the will to enable beneficiaries who survive the testator for a certain period to be entitled to the inheritance. Beneficiaries who do not survive the stated period after the death of the testator are considered to have predeceased the testator. This means the gift to the beneficiary will fail.
Reasons to exclude dependents or specific persons in the will - when the testator is excluding dependents (stated below) from his will, the Inheritance (Family Provision) Act 1971 allows the court to award the dependents reasonable provisions based on the reasonable standard of living of the dependents.
Testamentary Trust - the testator may create a trust in his will to provide regular income to the beneficiaries (who may be minor, disabled, aged or spendthrift) over a specific period of time for their maintenance, medical and education expenses. The testator will allocate specific assets as the trust assets to form the trust fund for the beneficiaries.
Residue - this very important clause is to be included in the will to prevent partial intestacy. This clause covers all the remaining assets of the testator that he did not specifically state in his will. In this clause he can name the beneficiaries to receive the residue of the estate (which includes also assets he acquires in the future).
Testimonium clause - states that the testator is signing in the presence of the witnesses.
Attestation Clause - where the witnesses attest that the will is signed by the testator in their presence.
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32. VALIDITY OF A WILL Written form
No will shall be valid unless it is in writing as stated in s.5 Wills Act An exception is allowed for privileged will as stated in s.26 Wills Act The will can be handwritten or typed and can be in any language. However, a will done by video or audio is not valid as it is not considered to be written.
Execution
s.5 Wills Act 1959 states that the testator must sign or affix his mark (e.g. thumbprint) at the end of the Will or so placed that it shall appear that it was intended to give effect to the writing as a Will.
Where necessary, s.5 Wills Act 1959, allows another person to sign the will on behalf of the testator at his direction (which means that the testator must have sound mind when giving such direction). This is usually done when the testator is physically disabled and could not execute his will by way of thumb print.
Attestation
A will must be attested by at least 2 witnesses present at the same time when the testator or the person signing on his behalf sign.
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33. LEGAL CAPACITY
When executing the will, the testator must have the following capacities:
Age
The testator had attained the age of 18 for Peninsular Malaysia and Sarawak (s.4 Wills Act 1959) or had attained the age of 21 for Sabah (s.4 Wills Ordinance 1953).
Mental capacity
The testator is of sound mind at the time of signing the Will (s.3 Wills Act 1959).
Where the testator is under medical treatment and/or suffering from an illness that may affect the sound mind of the testator, it is recommended to have a doctor as one of the witnesses and where possible the doctor is to record of the testator's mental state at that time and the record be kept together with the will.
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34. REVOCATION OF A WILL
A will is revocable before death. This would allow the testator to terminate the will where it is suitable to do so or to amend the terms of the will. A will is revoked when there is:
Marriage - s.12 Wills Act 1959 / s.12 Wills Ordinance 1953
The testator's valid marriage will automatically revoke a will written prior to the marriage. This would also apply to remarriages.
An exception would be when the testator states in the will the name of the person he intends to marry in the future and also state that the will is not to be revoked when he marries the person so named (called "in contemplation/expectation of marriage"). This exception will not be valid if the name of the person the testator intends to marry is not stated or where the testator marries another person.
Divorce will not revoke a will and it is important for the testator to rewrite his will as the ex-spouse will still be able to inherit.
Intentional destruction - s.14 Wills Act 1959 / s.14 Wills Ordinance 1953
When the testator destroys the will with the intention to revoke the will, it is a valid revocation.
However, accidental destruction or malicious destruction by a third party does not constitute effective revocation. This is where a copy of the last will and testament could be used to obtain Probate.
A later will - s.14 Wills Act 1959 / s.14 Wills Ordinance 1953
A will that is dated later will always revoke the earlier one. It can be done either expressly by having a revocation clause e.g. 'I revoke all my earlier wills' or by implication with reference to the date of the last will and testament.
Duly executed writing declaring an intention to revoke - s.14 Wills Act 1959 / s.14 Wills Ordinance 1953
Revocation is made where the testator executes a written statement to revoke his will and this document is signed by himself and 2 witnesses. The execution and attestation of this document follows the same rules as execution and attestation of a will.
Conversion to Islam
The Wills Act 1959 does not apply to Muslims as stated in s.2 Wills Act Further, when a person converts to be a Muslim, Islamic law takes effect. Therefore, the will of any person who converts to be a Muslim is no longer valid.
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35. ADVANTAGES OF HAVING A WILL
Among the advantages of haying a will:
Freedom to Determine Beneficiary
When a testator writes his will, he decides which person or organization should receive as beneficiary. The testator may decide to give assets to his dependents or to a stranger, as the testator is the absolute owner of his assets.
However, the testator's freedom is curtailed by the Inheritance (Family Provisions) Act 1971 to protect dependents. The dependents can apply to court for reasonable provision to be made out from the estate of the testator for their maintenance. Please refer above under "Contents of a Will".
Without a will, the law distributes the estate according to the intestacy laws provided for under the Distribution Act 1958 as amended by the Distribution (Amendment) Act 1997 (for Peninsula Malaysia and Sarawak) or the Intestate Succession Ordinance 1960 (Sabah) shall states the beneficiaries and the manner in which they are to benefit. The deceased will have lost his right to dictate to terms of the distribution as well as who should inherit his wealth.
It can also lead to fragmentation of the estate as it can be inherited by persons the deceased never intended to give. This occurs for example where a father transferred a property to his eldest son who is married with 5 children. Unfortunately, the son died in accident survived by his wife, his 5 children and his father. As the son died intestate, the father inherited 1A of the son's estate. Upon the death of the father his other 6 children will inherit his estate. As a result, the son's estate will be owned by his wife, his 5 children and his 6 siblings.
For Muslims, Islamic law applies under Faraid to determine the entitlement of the legal heirs and the testator will lose his right to give 1/3 of his estate to his chosen beneficiary (who is not a legal heir).
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36. ADVANTAGES OF HAVING A WILL
Faster legal process
With a will and a proving executor, the estate is exempted from:
Administration Bond - please refer to "Letters of Administration - Administration Bond by 2 sureties" above
Renunciation to be administrator - the consent of all the entitled beneficiaries is necessary for the appointment of the administrator as well as their renunciation to act as administrator is required. This can be problematic as the beneficiaries may not agree to renounce their right to be appointed as administrator fearing that the administrator may abscond with their inheritance.
Where there is a will, the executor is not required to obtain Administration Bond and his appointment as executor is not subjected to the approval of the beneficiaries but that of the court. In practice the court will not question the named executor, unless there is evidence (such as bankruptcy or convicted criminal) to disqualify him from being approved as the executor.
Choice of executor and trustee - in order for the estate to be managed well and for distributed to be carried out smoothly, it is imperative to appoint the right person or trust company as executor. Part of the duties of the executor and trustee is to safeguard the interests of the testator's loved ones. Such an important appointment should not be left to the beneficiaries to determine. By writing a will, the testator is free to determine who is to be appointed as executor and trustee.
Choice of Guardian - the testator can appoint a guardian or guardians for his own minor children and is not allowed to appoint guardian for his grandchildren or minor children of others. The rules for the appointment of guardian are stated in the Guardianship of Infants Act 1961 for non-Muslims and Islamic Family Law (Federal Territories) Act 1984 for Muslims.
Lower cost
Due to the lengthier process and time spent to obtain Letters or Administration than Probate, it is usual that it incurs a much higher cost than a petition for Probate.
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37. Assets Not Under A Will Insurance policy
Where a nomination has been made under s.166 Insurance Act 1996, the insurance proceeds shall not form part of the estate of the testator and thus will not be dealt in the will. Nomination under s.166 occurs when policy holder nominated:
Spouse; or
Children; or
Parents (provided at the time of nomination the policy holder does not have a child or spouse)
The effect of s.166 nomination is that a trust is created on the money payable upon death. This money is also not subject to claims by the creditors of the estate.
The nomination made under s.166 cannot be altered or revoked by the will.
Where the policy owner nominated other persons that those stated in s.166, the nominee shall take the policy money as an executor (s.167 Insurance Act 1996), unless the benefits of the policy are expressly assigned to him.
Employees Provident Fund (EPF) - EPF Regulations 1991
The nominee will receive the proceeds as beneficiary. If no nomination was made, it will be received by the estate of the EPF member.
Regardless whether a nomination is made or not, where the member withdrawn the approved portion from his account to invest in unit trust, any unit trust that is not sold during the lifetime of the member shall form part of his estate.
For Muslim EPF members, the nominee shall act as the executor to distribute the proceeds according to Islamic law.
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38. ISLAMIC LAW OF INHERITANCE
The distribution priority of a Muslim's estate is as follows:
Burial preparation and its expenses
Payment of debts and liabilities
Settlement of any claim of Harta Sepancarian
Distribution by will, if any
Rights of the legal heirs under Faraid
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39. Faraid For a person to be entitled under Faraid, it is determined by:
Blood relationship
Must be related to the deceased by blood. This excludes adopted children; and
If the heir is a child, the child must be a legitimate child of the father's estate. This will exclude illegitimate children and also step children.
Marriage
Legally married spouse of the deceased are legal heirs; and
Illegitimate children can inherit from the mother's estate but not from the estate of the father. This principle applies to non-Muslim estates as well.
Muslim
Where there are no other heirs, the general body of Muslims represented by Baitulmal becomes entitled to the estate of the deceased Muslim.
Baitulamal literally means "house of property". In practice, it is the public treasury of a Muslim estate. Its sources of income are from zakat, tax and inheritance.
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40. Legal Heirs Of The Deceased Muslim
There are 4 categories:
Quranic heirs (Ashabul Furudh) - they are the next-of kin whose shares are fixed by the Quran and Sunnah.
Residuary/Agnatic heirs (Asabah) - they are also called universal heirs whose shares to inheritance are not fixed. They take the remaining estate, if any, after the Quranic heirs. Where there are no Quranic heirs, they will take the entire estate. They can be either:
Residuary heirs in their own right (Asabah bi nafsi)- which consists of all male agnates
Residuary heirs through another (Asabah bi ghayri) - which consists of female agnates who co-exist with male relatives of the same degree
Residuary heirs through the existence of another (Asabah ma'a ghayri)
Public Treasury (Baitul-mal)
Distant Kindreds/Relatives (Dhawul Arham) - Relatives of the praepositus who are neither Quranic heirs nor Asabah
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41. QURANIC HEIRS (ASHABUL FURUD)
They are:
Wife
Husband
Father
Mother
Daughter
Paternal Grandfather (father's father)
Grandmother
Agnatic granddaughter (daughter of son)
Full blood sister - same father and mother (germane sister)
Sister from the same father, but different mother (consanguine sister)
Brother from the same mother, but different father (uterine brother)
Sister from the same mother, but different father (uterine sister)

42. RESIDUARY/AGNATIC HEIRS (ASABAH)
 They are: 
Residuary heirs in their own right (male heirs') CAsabah bi nafsi)
Son
Grandson
Father
Paternal Grandfather
Germane brother (sibling from the same mother and father)
Consanguine brother (sibling from the same father but different mother)
Son of germane brother (nephew)
Son of consanguine brother (nephew)
Germane uncle (father's brother from the same father and mother)
Consanguine uncle (father's brother from the same father but different mother)
Son of germane (male cousin)
Son of consanguine (male cousin)

43. ISLAMIC WILL (WASIAT)
Even though Faraid is the predominant inheritance law, a Muslim is encouraged to write a will (wasiat).
"It is not permissible for any Muslim who has something to Will to stay for two nights without having his Last Will and Testament written and kept ready with him“, P r o p h e t S.A.W s a i d, as narrated by Abdullah bin Umar

44. Basic Principles of Wasiat
Muslims can give 1/3 of his estate to non-Faraid heirs.
1/3 of the estate is determined at the time of applying for Probate in the High Court. The testator may stipulate what assets form part of the 1/3 of the estate to be received by the wasiat beneficiaries.
In the event more than 1/3 of the estate is given in the wasiat to the wasiat beneficiaries, the Faraid heirs are to approve the gift because their 2/3 portions will be reduced.
If the 1/3 is given to one of the Faraid heirs, the rest of the Faraid heirs are to approve the gift as it would be unfair to them.

45. ISLAMIC WILL (WASIAT)

46. Contents of Islamic Will (Wasiat)
The contents of a wasiat include:
Appointment of executor (wasi) - the executor must be a male Muslim or a trust corporation registered under the Trust Companies Act 1949;
Appointment of guardian;
To make provisions of up to 1/3 of the estate to be distributed for adopted children, step-children, family members who are non-Muslims, charities and poor non-Faraid heirs or friends;
Make specific declarations for e.g. declare to be holding assets on trust for loved ones;
Witnesses of the will - require 2 male Muslim witnesses.

47. Benefits of having an Islamic Will (Wasiat)
There are various benefits, among them are:
Avoid disputes between Faraid heirs who should be appointed as Administrator as testator can appoint his chosen Muslim male executor;
Avoid having to apply for Letters of Administration that causes delay;
To ensure that the distribution of the estate will be fast and efficient using Probate;
Probate has lesser formalities, thus avoiding possible erosion of the value of the estate;
Avoid having the need to have 2 sureties providing Administration Bond;
Freedom to distribute 1/3 of the estate to the testator's chosen beneficiary. With a wasiat, the testator can determine the amount of inheritance and when the beneficiary stands to inherit the 1/3 of the estate.

48. ESTATE PLANNING INSTRUMENTS AVAILABLE FOR MUSLIMS
Limited to 1/3 distribution made during lifetime?
Limited to 1/3 distribution made upon death?
Will (Wasiat)
Not applicable
Yes
Hi bah (Gift)
No, unlimited
Trust (Amanah)
No, unlimited for Living Trust (Amanah Hayat)
Yes, for testamentary trust
Buy-Sell Agreement No
Proceeds from sale of shares upon death are subject to Faraid
Harta Sepencarian
Yes, subject to individual State regulations or practice
Power of Attorney
Assets or proceeds are subjected to Faraid
Lifetime transfer
Yes, if made due to fatal illness before death
Wakaf and Sadaqah

49. PLANNING CONSIDERATIONS IN WILL WRITING PREPLANNING CONSIDERATIONS
The client may have many reasons wanting to write a will. Such reasons are important to ensure that the distribution stated in the will and/or other estate planning instruments that may be used, reflects the intention of the client. As a financial planner, it is important for some thoughts to be given at the preplanning stage so that potential conflicts and problems in the will can be kept to a minimum at the implementation stage.
Potential conflicts between heirs
Ensuring that minor and special needs children are provided for
Financial well-being of aged parents
Leaving out dependents and/or heirs
Informing the heirs of the will

50. STEPS AND LEGAL REQUIREMENTS IN WILL PLANNING

51. The Process Of Estate Administration

52. The End
End of Chapter 1.