Ask and We WILL Answer

THE Borneo Post with the expert help of Rockwills Trustee Bhd, the leading specialist in estate planning having pioneered wills and trust 27 years ago, is publishing a regular Q & A column on estate planning. It will feature questions which readers have in mind but don’t know who to ask.

Question 1: I do not have the title of the house that I am staying in. According to my father, this house belonged to my grandfather. While he had intended that the house be handed over to my father, we have never seen the title. My grandfather passed away a long time ago and he did not have a will. Can I give this house to my son?

Answer: To find out whether you can include your grandfather’s house in your will, you would need to find out whether you are entitled to a portion of that house. As your grandfather passed away without a will, his estate would be distributed according to the Distribution Act 1958 (for Peninsular Malaysia and Sarawak) or Intestate Succession Ordinance 1960 (for Sabah) where the legal beneficiaries shall be the surviving spouse, parents, and children.

If your grandfather is survived by his children only, then your father, being a child of your grandfather shall be entitled to inherit either wholly or jointly with siblings from your grandfather’s estate.

If your father is the only child of your grandfather, then your father shall be the sole beneficiary of the house. Then a court order can be applied to effect the transfer of ownership of the house to your father. However, if your father also passes away without a will, the law of intestacy would result in you having to jointly own the house with surviving siblings and the other beneficiaries mentioned above, if any.

If your father is the sole beneficiary, it is very important for him to have his will done so that he can name you as the sole beneficiary of the house. This shall allow you to give the house to your son in your will entirely.

However, if your grandfather had many children including your father, then your father and his siblings shall inherit the house in equal shares. Even if your father were to write a will, he could only give his own share of the house to you.

Due to the fragmentation of ownership, it may eventually lead to complications if any one of the joint owners would want you to vacate the house to sell it. This can cause bad blood between your father and his siblings. Bear in mind that, you, being the eventual heir to your father’s share in the house, may face the same issue upon your father’s demise.

In conclusion, we would like to emphasise the importance of having a will done as it is a legal instrument which allows you to list out all your hardearned assets and your loved ones as beneficiaries for them, to sow the legacy that you reaped without any hurdle. For your own and your father’s will, we suggest you engage a professional estate planner in helping you both to work out a will, in which the instructions are clear, practical, and can be carried out by the executor smoothly. will writing should not be taken lightly as its consequences will affect your loved ones: whether it is a blessing, or a bane.

Question 2: I have written a will and in the will, I have named my wife to be my beneficiary. However, recently I divorced her but I still hope to give my assets to her. Do I need to update my will since the wording “my wife” is used in my will to describe her relationship with me?

Answer: Changes in life are often unexpected, which is something that we all have to accept. Of course, it is the same for will writing, especially when there are changes to our personal circumstances and relationships.

Understanding that you still want to benefit your now exwife, the actual wording used in your current will determines whether your will needs any update.

If your will did not indicate the name of your wife but merely stated as “my wife”, now that you both have been divorced, then your now ex-wife no longer fits this description, and thus, would not be able to inherit from your will.

However, if her details were stated clearly and specifically, then the gift to her could still take effect. For your information, although the divorce between you two would not revoke your will, if you were to remarry in the future, your will shall be automatically revoked by the new marriage. Then you will need to write a new will at that time.

However, we are concerned that if you were to leave the details of your now ex-wife and her description as ‘wife’ unchanged in the will, it may cause any interested party to dispute the right of your ex-wife in inheriting your assets! Hence, it is best to rewrite your will to update the current details of your ex-wife, especially as to the relationship between you and her.

By doing so, you can have peace of mind that all information is up-to-date. Also, what seems to suit you at one point of time might not be the same at a later point of time.

So, if your will does not update your current relationship, it might create unnecessary doubt among your own family members as to your real intent.

Hence, we advise you to review your will regularly to make sure it will take effect according to your wishes after death.