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The Star
by Roger Tan
 When a non-Muslim dies without making a will, his estate
will be distributed according to the law, except in the case of insurance and
EPF savings, where the nominees are the beneficiaries.
AS WE are all mortals, and death often comes like a thief in the night, we owe
it to our loved ones to make a will during our lifetime. I would like to advise
our readers on the importance of making a will, and the consequences of not
making one.
By not making a will, you will not be able to distribute the assets according to
your wishes after your death. Instead the state will define who will actually
benefit from your death.
When a person dies without making a will, he is said to have died intestate. His
property is called his “estate”, and his children, his “issue”.
The relevant law which deals with the distribution of the property of an
intestate is the Distribution Act, 1958 (“Distribution Act”), which only applies
to non-Muslims in Peninsular Malaysia.
Under the Distribution Act, the word “child” means a legitimate child, and where
the deceased had more than one lawful wife, includes a child by any of such
wives and any child adopted under the Adoption Act, 1952.
The word “issue” means the deceased’s children and includes the descendants of
his deceased children. It also includes any child who at the date of the
deceased’s death was still in the womb but subsequently born alive.
On the other hand, “parent” is defined as the natural mother or father of a
child, or lawful mother or father of a child adopted under the Adoption Act
1952.
An intestate’s estate will be distributed among his surviving family members
according to the Distribution Act. The same law applies to male and female
deceased persons.
Section 66(1) of the Law Reform (Marriage and Divorce) Act 1976 provides that
the wife who is judicially separated from her husband at the time of the
latter’s death is still entitled to the property of the deceased husband in the
same way as a surviving spouse as if no judicial separation had been made, but
not vice versa.
As for divorced spouses, they remain surviving spouses until the decree (divorce
order) is made absolute.
Generally, the estate will be distributed among the deceased’s immediate family:
his parents, his spouse, and his issue.
The distribution of the estate of an intestate is shown in the accompanying
table.
If a person dies leaving no parent, spouse and issue, his estate will go to the
following persons in equal share in the following order of priority:
(a) brothers and sisters, (b) grandparents, (c) uncles and aunts, (d) great
grandparents, (e) great grand uncles and grand aunts.
If a person dies leaving no parent, spouse, issue, and any of the family members
mentioned, then the whole estate goes to the Government.
If the intestate has more than one lawful wife, then such wives shall share
among them equally the share which the wife of the intestate would have been
entitled to had such intestate left only one surviving wife.
Section 7 of the Distribution Act also provides that when the intestate and
his/her spouse have died in circumstances rendering it uncertain which of them
survived the other, then notwithstanding any rule of the law to the contrary, it
will be regarded as if the spouse had not survived the intestate.
Also, the above will not apply if the deceased has left a valid will. But, under
the Inheritance (Family Provision) Act 1971, the court still has the power to
make reasonable provisions for the maintenance of certain dependants of the
intestate.
However, no such application shall be made to the court where the disposition of
the intestate’s estate is such that the surviving spouse is entitled to not less
than two-thirds of the income of the net estate and where the only other
dependant or dependants, if any, is or are a child or children of the surviving
spouse.
Similarly, the Distribution Act will not apply in situations where an insurance
policy holder has nominated a beneficiary pursuant to section 165 of the
Insurance Act 1996 and the nominee has made a claim on the policy moneys within
12 months of the insurance company becoming aware of the policy holder’s death
notwithstanding earlier notification to the policy holder.
Likewise, under section 54(1)(a) of the Employees Provident Fund Act 1991 and
Regulation 9 of the Employees Provident Fund Regulations 2001, the EPF Board
will pay the EPF savings to a nominee of a deceased EPF member if the latter has
made a nomination before his death.
Finally, readers should also note that if a person dies intestate, the procedure
for applying letters of administration will differ from one who has left a valid
will.
If the intestate has left an estate consisting wholly or partly of immovable
property situated in Malaysia which does not exceed RM2mil in total value, then
the Small Estates (Distribution) Act 1955 treats this as a small estate, in
which case petition for distribution has to be made to the Land Administrator.
Otherwise, all applications for letters of administration or probate are made to
the High Court.
In conclusion, readers are also advised that they should engage the services of
a lawyer to draft a valid will and have it efficiently administered. Do not be
hoodwinked by mendacious claims of unqualified will writers that they are
experts in this area.
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