Malaysian Wills Act: Requirements for Valid Testacy and Formalities

Posted on Jan 23, 2026 in Law

Foundations of Succession Law in Malaysia

Law of Intestacy vs. Testacy

  • Law of Intestacy: Changes from time to time based on the needs and circumstances of society.
  • Law of Testacy: Allows a person to give all or part of their property to anyone they choose. This law remains constant, independent of societal needs or changing circumstances.

Definition of a Will

A will is a legal written document that outlines how a person’s assets will be distributed after their death. (Refer to Section 2 of the Wills Act 1959 (WA)).

Types of Wills Under the Wills Act 1959

  1. Formal Wills (Section 5 WA)
  2. Informal/Privileged Wills (Section 26 WA)
  3. Foreign Wills (Section 27 WA)

1. Formal Wills

Formal wills are governed primarily by Section 5(2)(a)-(e) of the WA, supported by Section 6 and Section 7.

  • Section 6 WA: Execution of appointment by will (Section 6(1) & (2)).
  • Section 7 WA (Publication): A will made in the required way is valid even if it is not made public.

Failure to comply with the legal formalities required by Sections 5, 6, and 7 shall render the will invalid.

2. Informal or Privileged Wills

These wills are detailed in Section 26(1)-(5) WA and apply to soldiers, airmen, and sailors.

  • Section 26(1): A Malaysian soldier on active duty, or a sailor (including naval forces) at sea, can make a special type of will (a privileged will) to dispose of property, choose a guardian, or use any power allowed by a will.
  • Section 26(2): A privileged will refers to any statement or instruction, spoken or written, made by the testator, showing their wishes regarding property distribution, guardianship, or the use of a specific power.
  • Section 26(3): A declaration can be a valid privileged will even if it wasn’t made in the way the testator planned, or if the person meant to make a formal will later—unless it’s clear the person changed their mind.
  • Section 26(4): Sections 4, 5, and 6 do not apply to privileged wills, and a written privileged will does not require the testator’s signature.
  • Section 26(5): A privileged will becomes invalid one month after the person who made it is no longer allowed to make a privileged will (as long as they are still alive), unless the will is already valid under other parts of the law.

3. Foreign Wills

These are wills executed abroad. Refer to Section 27(a)-(d) of the WA.

Requirements for a Valid Will

1. Age of Majority

  • Section 4 WA: A will is not valid if it is made by someone under the age of majority.
  • Age of Majority Act 1971 (Section 2): In Malaysia, the age of majority is 18 years old.
  • Exception (Section 26(4) WA): This age rule does not apply to privileged wills made by soldiers, airmen, or sailors.

2. Capacity (Animus Testandi)

To create a valid will, the testator must satisfy three criteria:

  1. Mental Capacity
  2. Intention to Make a Will
  3. Free Choice (Absence of Undue Influence)

(i) Mental Capacity

The testator must be of sound mind and understand the will, their property, and who will receive it. Section 3 WA requires the testator to have a sound mind.

Legal Principles of Sound Mind:
  • According to Marquis of Winchester, the testator must have a clear memory. Delusions and insanity can invalidate a will if they influence decisions. Wills made during a lucid period are valid.
  • In Banks v Goodfellow, it was established that the testator must understand the nature and effects of what they are doing, know the extent of their property, and be able to recognize and consider the claims of those who might have a right to some of it.
  • In Re Ng Toh Piew, a second will made while the testator was very sick and which excluded his son (unlike the first will) was questioned because the testator told a witness he had no son, suggesting a lack of mental capacity at the time of execution.
A. Burden of Proof (BOP) and Presumption

The person who presents the will must prove that the testator was mentally capable. Courts usually assume a person is capable unless there is proof otherwise.

  • In Barry v Butlin, it was held that the person presenting the will must convince the court that it is the genuine last will of a free and capable person. This rule was followed in the Malaysian case Udham Singh v Inder Kaur.
  • In Tyrrell v Painton, Lindley LJ stated that the rule from Barry v Butlin applies whenever there are reasons for the court to be suspicious about a will. The responsibility lies with the presenters to clear up any doubts.
  • In Dr. K. Shanmuganathan v Periasamy, the court stated that the person presenting the will must first prove it was properly signed; only then does the challenger need to prove it is invalid.
  • In Battan Singh v Amirchand, a will might be invalid if there is doubt about its genuineness, requiring the court to confirm the testator’s true intention.
  • The will in Estate of Hew Wai Kwong was declared invalid because it was made under unfair pressure and dishonest conditions.
B. Situations That May Affect Mental Ability
  • Delusion: A belief that is irrational and not accepted by a reasonable person. A delusion alone does not invalidate a will unless it affected the decisions made within the will. In Dew v Clark, the will was invalid because the delusion influenced the testator’s choices. Conversely, in Banks v Goodfellow, the will was valid because the testator’s delusions did not affect the distribution of property.
  • Lucid Interval: A period of clear thinking between two episodes of insanity. Any will made during this clear period is considered valid. In Chambers & Yatman v The Queen’s Proctor, a will made during a lucid moment was ruled valid, even though the person took their own life the next day.
C. Time for Determining Mental Capacity

The testator must be mentally sound when signing the will. If a person becomes insane after making a will, the will remains valid because the person was mentally sound when it was executed.

  • The Parker v Felgate Exception: A will can still be valid even if the person was not mentally capable when signing it, provided they were mentally capable when giving instructions to write the will. For this rule to apply, two conditions must be met:
    1. The will was made based on the testator’s instructions.
    2. At the time of signing, the testator is able to understand, and does understand, that they are signing a will.
  • This exception does not apply if the testator is completely insane or unable to understand when signing the will. In Battan Singh v Amirchand, the court chose not to apply the Parker v Felgate rule because the testator’s instructions were given through a third party, necessitating greater caution against miscommunication or deception.

(ii) Intention to Make a Will (Animus Testandi)

Intention is determined by examining the written document, the testator’s signature, the presence of two or more witnesses, and the words used in the will.

  • In Hsu Yik Chai v Hsu Yaw Tang & Anor, the court found that the deceased only intended to give a conditional gift, and since only the two respondents met that condition, no trust was created for the widow.

(iii) Free Choice

A will must be made voluntarily without coercion. Undue influence, fraud, or pressure invalidates a will. The burden of proof rests on the person claiming undue influence.

  • In Subramaniam v Rajaratnam, the appellant claimed undue influence because the beneficiary (Raja) lived with and cared for the testatrix. However, the appellant failed to prove the influence, and the court accepted the will as valid.

Formalities of Execution

The primary requirements for formal execution are:

  1. Must be in writing.
  2. Must be signed by the testator.
  3. Must be witnessed by at least two witnesses (who cannot be beneficiaries).

Effect of Non-Compliance: The will is void, and the Distribution Act 1958 will apply.

(i) Must Be in Writing

Section 5(1) WA states that a will must be in writing and properly signed to be valid. There is no limit on the material used to write the will, as shown in Re Barnes’ Goods. The will can be written by someone else on behalf of the testator (Christian v Intsiful) and can be written in any language (Whiting v Turner).

(ii) Must Be Signed by the Testator

Refer to Section 5(2) WA:

  1. Every will shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction.
  2. Such signature shall be made or acknowledged by the testator as the signature to his will in the presence of two or more witnesses present at the same time.
  3. Such witnesses shall subscribe the will in the presence of the testator.
A. What Constitutes a Signature?

As long as the testator leaves a mark or initials meant to act as their signature, it is legally acceptable (Leong Chee Kong). This includes a thumbprint, rubber stamp, nickname, description, or initials.

  • In Re Cook’s Estate, the phrase “Your Loving Mother” was accepted as a valid signature.
  • In Re Jenkins, a signature made using a rubber stamp was acceptable.
  • In Re Finn, an illiterate person’s ink-stained thumbprint was accepted.
  • In Goods of Chalcraft, a partial signature (“E Chal”) made by a sick woman was accepted because it was what she intended.
B. Who May Sign?

Refer to Section 5(2) WA: Every will must be signed by the testator or by someone else, but only if the testator is present and asks them to sign.

C. Where to Sign?

Section 5(2) WA requires the signature to be at the bottom or end of the will. Unlike the English Wills Act 1837, which allows flexibility, in Malaysia, the signature must strictly be at the end of the will.

D. How to Sign?

The testator must sign their will in front of at least two witnesses who are all present at the same time. If the testator did not sign in front of the witnesses, they must acknowledge their signature while the witnesses watch.

  • In In Re Colling (1972), the will was declared invalid because the testator started signing with two witnesses present, but one witness left before the signature was completed, violating the requirement that both witnesses be present at the same time.
E. How to Acknowledge?

The testator must show that they recognize their signature as their own. Saying “that is my signature” or “that is my will” is usually sufficient. The witnesses must see the signature or have the chance to see it, as the acknowledgment is about the signature, not the will itself (Blake v Blake (Re Goods of Mary Gunstan)).

  • In Re Groffman (1969), merely pointing to a coat pocket where the will was kept was ruled invalid acknowledgment.
  • The acknowledgment must happen in front of two witnesses at the same time (Section 5(2) WA).
  • In Savinder Kaur v Chamjit Singh, the will was declared invalid due to the testator’s failure to properly acknowledge the will in front of witnesses.

(iii) Must Be Witnessed by at Least Two Witnesses

Section 5(2) WA requires that witnesses must sign the will in front of the testator. However, the witnesses do not have to sign in front of each other.

  • In Dr. K. Shanmuganathan v Periasamy, the court confirmed that it is sufficient if the testator signs or confirms their signature in front of both witnesses together; the witnesses do not need to sign in each other’s presence.

The Concept of Presence

In Section 5, ‘presence’ means that the testator and the witnesses must be mentally and physically close to each other when the will is signed.

1. Mental Presence

The witness must be aware of what is happening—specifically, the testator signing the will (Brown v Skirrow). The witness must be mentally present during the act.

2. Physical/Conceptual Presence

The rule is whether the person watching the signature being made could have seen the other person signing if they wanted to (Casson v Dade).

Qualification of Witnesses

Witnesses must be:

  • Mentally capable.
  • Of the age of majority.
  • Visually capable (a blind person is not qualified, Hudson v Parker).

Effect of Witnessing on Validity

  • Section 8 WA: If a witness becomes incompetent at or after witnessing the will, it does not affect the validity of the will.
  • Section 9 WA (Beneficiaries): If a beneficiary or their spouse is a witness, the gift to that person becomes invalid, but the will itself remains valid.
  • Section 10 WA (Creditors): A creditor can be a witness if the will mentions the repayment of debts.
  • Section 11 WA (Executors): An executor is allowed to be a witness and is not considered incompetent.