LAWS OF MALAYSIA
REPRINT
Act 346
WILLS ACT 1959
Incorporating all amendments up to 1 January 2006
PUBLISHED BY
THE COMMISSIONER OF LAW REVISION, MALAYSIA
UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968
IN COLLABORATION WITH
PERCETAKAN NASIONAL MALAYSIA BHD
2006
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Laws of Malaysia
ACT 346
WILLS ACT 1959
First enacted
... ... ... ... ... ... ...
1959 (F.M. Ord. No.
38 of 1959)
Revised
... ... ... ... ... ... ... ... 1988 (Act 346 w.e.f.
6 October 1988)
PREVIOUS REPRINT
First Reprint
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...
...
...
2001
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LAWS OF MALAYSIA
Act 346
WILLS ACT 1959
ARRANGEMENT OF SECTIONS
Section
1.
Short title and application
2.
Interpretation and application
3.
Property disposable by will
4.
Will of infant invalid
5.
Mode of execution
6.
Execution of appointment by will
7.
Publication of will not necessary
8.
Will not to be invalidated by reason of incompetency of attesting
witness
9.
Gifts to an attesting witness or to wife or husband of attesting witness
to be void
10.
Creditor attesting a will charging estate with debts shall be admitted
a witness
11.
Executor not incompetent to be a witness
12.
Will to be revoked by marriage except in certain cases
13.
No will to be revoked by presumption from altered circumstances
14.
Revocation of will
15.
Effect of obliteration, interlineation or alteration
16.
Revival of revoked will
17.
Subsequent conveyance or other acts not to prevent operation of will
18.
Wills shall be construed to speak from the death of the testator
19.
Residuary devises or bequests shall include estates comprised in lapsed
and void devises or bequests
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ACT 346
Section
20.
General devise or bequest of property shall include property over which
the testator has general power of appointment
21.
Devise or bequest without words of limitation
22.
Construction of words importing want or failure of issue
23.
Devise or bequest of property to trustee or executor
24.
Devise or bequest of property to trustee without limitation
25.
Devises or bequests to children or other issue who leave issue living
at the testator's death shall not lapse
26.
Privileged wills of soldiers, airmen and sailors
27.
Wills executed abroad
28.
Wills by citizens executed in Malaysia
29.
Change of domicile not to invalidate will
30.
Construction of wills
31.
(Omitted)
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LAWS OF MALAYSIA
Act 346
WILLS ACT 1959
An Act relating to the law on wills.
[1 April 1960, L.N. 55/1960]
Short title and application
1. (1) This Act may be cited as the Wills Act 1959.
(2) This Act shall apply to the States of Peninsular Malaysia
only.
Interpretation and application
2. (1) In this Act, unless there is something repugnant in the
subject or context--
" p r o p e r t y " includes lands, leases, rents and hereditaments
corporeal, incorporeal or personal and any individual shares thereof
and any estate, right or interest therein or in relation thereto,
moneys, shares of Government and other funds, securities for
money, charges, debts, choses in action, rights, credits, goods and
all other property whatsoever which devolves upon the executor
or administrator and any share or interest therein and any contingent,
executory or other future interest;
"*Peninsular Malaysia" has the meaning assigned thereto in
section 3 of the Interpretation Acts 1948 and 1967 [Act 388], and
includes the Federal Territory of Kuala Lumpur;
*NOTE--All references to "West Malaysia" shall be construed as references to "Peninsular Malaysia"
see the Interpretation (Amendment) Act 1997 [Act A996], subsection 5(2).
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"will" means a declaration intended to have legal effect of the
intentions of a testator with respect to his 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.
(2) This Act shall not apply to the wills of persons professing
the religion of Islam whose testamentary powers shall remain
unaffected by anything in this Act contained.
Property disposable by will
3.  Except as hereinafter provided, every person of sound mind
may devise, bequeath or dispose of by his will, executed in manner
hereinafter required, all property which he owns or to which he
is entitled either at law or in equity at the time of his death
notwithstanding that he may have become entitled to the same
subsequently to the execution of the will.
Will of infant invalid
4.  No will made by any person under the age of majority shall
be valid.
Mode of execution
5. (1) No will shall be valid unless it is in writing and executed
in manner hereinafter mentioned.
(2) 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;
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, and such witnesses shall subscribe the
will in the presence of the testator, but no form of attestation shall
be necessary:
Provided that every will shall, as far only as regards the position
of the signature of the testator, or of the person signing for him
as aforesaid, be deemed to be valid under this section if the signature
shall be so placed at or after, or following, or under, or beside,
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or opposite to the end of the will, that it shall be apparent on the
face of the will that the testator intended to give effect by such
his signature to the writing signed as his will; and no such will
shall be affected by the circumstance--
(a) that the signature shall not follow or be immediately
after the foot or end of the will;
(b) that a blank space shall intervene between the concluding
word of the will and the signature;
(c) that the signature shall be placed among the words of the
testimonium clause or of the clause of attestation, or
shall follow or be after or under the clause of attestation,
either with or without a blank space intervening, or shall
follow or be after, or under, or beside the names or one
of the names of the subscribing witnesses;
(d) that the signature shall be on a side or page or other
portion of the paper or papers containing the will whereon
no clause or paragraph or disposing part of the will shall
be written above the signature; or
(e) that there shall appear to be sufficient space on or at the
bottom of the preceding side or page or other portion of
the same paper on which the will is written to contain
the signature,
and the enumeration of the above circumstances shall not restrict
the generality of this proviso; but no signature shall be operative
to give effect to any disposition or direction which is underneath
or which follows it, nor shall it give effect to any disposition or
direction inserted after the signature shall be made.
Execution of appointment by will
6. (1) No appointment made by will, in exercise of any power,
shall be valid, unless the same is executed in manner hereinbefore
required.
(2) Every will executed in manner hereinbefore required shall,
so far as respects the execution and attestation thereof, be a valid
execution of a power of appointment by will, notwithstanding that
it shall have been expressly required that a will made in exercise
of such power should be executed with some additional or other
form of execution or solemnity.
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Publication of will not necessary
7.  Every will executed in manner hereinbefore required shall be
valid without any other publication thereof.
Will not to be invalidated by reason of incompetency of attesting
witness
8.  If any person who attests the execution of a will shall at the
time of the execution thereof or at any time afterwards be incompetent
to be admitted a witness to prove the execution thereof, such will
shall not on that account be invalid.
Gifts to an attesting witness or to wife or husband of attesting
witness to be void
9.  If any person attests the execution of any will to whom or
to whose wife or husband any beneficial devise, legacy, estate,
interest, gift or appointment of or affecting any property, other
than and except charges and directions for the payment of any
debt or debts, shall be thereby given or made, such device, legacy,
estate, interest, gift or appointment shall, so far only as concerns
such person attesting the execution of such will, or the wife or
husband of such person, or any person claiming under such person
or wife or husband, be utterly null and void, and such person so
attesting shall be admitted as a witness to prove the execution or
to prove the validity or invalidity thereof, notwithstanding such
devise, legacy, interest, gift of appointment mentioned in such
will.
Creditor attesting a will charging estate with debts shall be
admitted a witness
10.  In case by any will any property shall be charged with any
debt or debts, and any creditor, or the wife or husband of any
creditor, whose debt is so charged, shall attest the execution of
such will, such creditor notwithstanding such charge shall be admitted
a witness to prove the execution of such will, or to prove the
validity or invalidity thereof.
Executor not incompetent to be a witness
11.  No person shall, on account of his being an executor of a
will, be incompetent to be admitted a witness to prove the execution
of such will or a witness to prove the validity or invalidity thereof.
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Will to be revoked by marriage except in certain cases
12.  Every will made by a man or woman shall be revoked by his
or her marriage, except a will made in exercise of a power of
appointment, when the property thereby appointed would not in
default of such appointment pass to his or her heir, executor or
administrator or the person entitled in case of his or her intestacy:
Provided that a will expressed to be made in contemplation of
a marriage shall not be revoked by the solemnization of the marriage
contemplated; and this proviso shall apply notwithstanding that
the marriage contemplated may be the first, second or subsequent
marriage of a person lawfully practising polygamy.
No will to be revoked by presumption from altered circumstances
13.  No will shall be revoked by any presumption of an intention
on the ground of an alteration in circumstances.
Revocation of will
14.  No will or any part thereof shall be revoked otherwise than
as aforesaid, or by another will executed in manner hereinbefore
required, or by some writing declaring an intention to revoke the
same, and executed in the manner in which a will is hereinbefore
required to be executed, or by the burning, tearing or otherwise
destroying the same by the testator, or by some person in his
presence and by his direction, with the intention of revoking the
same.
Effect of obliteration, interlineation or alteration
15.  No obliteration, interlineation or other alteration made in any
will after the execution thereof shall be valid or have any effect
except so far as the words or effect of the will before such alteration
shall not be apparent, unless such alteration shall be executed in
like manner as hereinbefore is required for the execution of the
will; but the will, with such alteration as part thereof, shall be
deemed to be duly executed if the signature of the testator and the
subscription of the witnesses be made in the margin or on some
other part of the will opposite or near to such alteration or at the
foot or end of or opposite to a memorandum referring to such
alteration and written at the end or some other part of the will.
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Revival of revoked will
16. (1) No will or any part thereof which has been revoked in any
manner shall be revived otherwise than by the re-execution thereof,
or by a codicil executed in manner hereinbefore required, and
showing an intention to revive the same.
(2) When any will which has been partly revoked, and afterwards
wholly revoked, is revived, such revival shall not extend to so
much thereof as has been revoked before the revocation of the
whole thereof, unless an intention to the contrary be shown.
Subsequent conveyance or other acts not to prevent operation
of will
17.  No transfer, conveyance, assignment or other act made or
done subsequently to the execution of a will or codicil of or
relating to any property therein comprised, except an act by which
such will or codicil shall be revoked as aforesaid, shall prevent the
operation of the will or codicil with respect to such estate, right,
share or interest in such property as the testator shall have power
to dispose of by will at the time of his death.
Wills shall be construed to speak from the death of the testator
18.  Every will shall be construed, with reference to the property
comprised in it, to speak and take effect as if it had been executed
immediately before the death of the testator, unless a contrary
intention shall appear by the will.
Residuary devises or bequests shall include estates comprised
in lapsed and void devises or bequests
19.  Unless a contrary intention appears by the will, such property
as is comprised or intended to be comprised in any devise or
bequest in such will contained, which fails or is void by reason
of the death of the devisee or legatee in the lifetime of the testator
or by reason of such devise or bequest being contrary to law or
otherwise incapable of taking effect, shall be included in the residuary
devise or bequest respectively, if any, contained in the will.
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General devise or bequest of property shall include property
over which the testator has general power of appointment
20.  A general devise or bequest of the estate or property of the
testator described in a general manner shall be construed to include
any property to which such description shall extend which he may
have power to appoint in any manner he may think proper and
shall operate as an execution of such power unless a contrary
intention shall appear in the will.
Devise or bequest without words of limitation
21.  Where property is devised or bequeathed to any person without
any words of limitation, such devise or bequest shall be construed
to pass the fee simple or other the right to the whole estate or
interest in such property which the testator had power to dispose
of by will unless it appears by the will that only a restricted
interest was intended for such devisee or legatee.
Construction of words importing want or failure of issue
22.  In any devise or bequest of property the words "die without
issue" or "die without leaving issue", or any other words which
may import either a want or failure of issue of any person in his
lifetime or at the time of his death, or an indefinite failure of his
issue, shall be construed to mean a want or failure of issue in the
lifetime or at the time of the death of such person, and not an
indefinite failure of his issue, unless a contrary intention shall
appear by the will:
Provided that this section shall not extend to cases where such
words as aforesaid import if no issue described in a preceding gift
shall be born, or if there shall be no issue who shall live to attain
the age or otherwise answer the description required for obtaining
a vested estate by a preceding gift to such issue.
Devise or bequest of property to trustee or executor
23.  Where any property shall be devised or bequeathed to any
trustee or executor, such devise or bequest shall be construed to
pass the fee simple or other the right to the whole estate or interest
in such property which the testator had power to dispose of by will
unless a lesser interest in such property shall thereby be given to
him expressly or by implication.
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Devise or bequest of property to trustee without limitation
24.  Where any property shall be devised or bequeathed to a
trustee, without any express limitation of the estate to be taken by
such trustee, and the beneficial interest in such property, or in the
surplus rents and profits thereof, shall not be given to any person
for life, or such beneficial interest shall be given to any person for
life, but the purposes of the trust may continue beyond the life of
such person, such devise or bequest shall be construed to vest in
or pass to such trustee the fee simple, or other the right to the
whole legal estate or interest in such property which the testator
had power to dispose of by will, and not an estate determinable
when the purposes of the trust shall be satisfied.
Devises or bequests to children or other issue who leave issue
living at the testator's death shall not lapse
25.  Where any person, being a child or other issue of the testator,
to whom any property shall be devised or bequeathed for any
estate or interest not determinable at or before the death of such
person shall die in the lifetime of the testator leaving issue, and
any such issue of such person shall be living at the time of the
death of the testator, such devise or bequest shall not lapse, but
shall take effect as if the death of such person had happened
immediately after the death of the testator, unless a contrary intention
shall appear by the will.
Privileged wills of soldiers, airmen and sailors
26. (1) A member of the armed forces of Malaysia being in actual
military service, and a mariner or seaman (including a member of
the naval forces of Malaysia) being at sea may dispose of his
property or of the guardianship, custody and tuition of a child or
may exercise a power of appointment exercisable by will by a
privileged will.
(2) For the purposes of this section a privileged will means any
declaration or disposition, oral or in writing, made by or at the
directions of the testator which manifests the intentions of the
testator which he desires to be carried or to the guardianship,
custody and tuition of a child or to the exercise of a power of
appointment.
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(3) A declaration may be a valid privileged will notwithstanding
that it was not executed in the manner appearing to have been
intended by the testator or that it was intended by the testator
subsequently to execute a formal will to give effect to his testamentary
dispositions, unless it appears that the failure to execute such
declaration in such manner or such formal will was due to the
abandonment by the testator of the testamentary intentions expressed
by such declaration.
(4) Sections 4, 5 and 6 shall not apply to privileged wills, nor
is it necessary for a written privileged will to be signed by the
testator.
(5) A privileged will other than a will which apart from the
provisions of this section would have been valid under this Act
shall be null at the expiration of one month after the testator being
still alive has ceased to be entitled to make a privileged will.
Wills executed abroad
27.  A will executed outside Malaysia in the manner required
by--
(a) this Act;
(b) the law of the place where it was executed;
(c) the law of the testator's domicile at the time of its execution;
or
(d) the law of the testator's domicile at the time of his death,
shall be deemed to be will executed for the purpose of being
admitted to probate in Malaysia, provided that such will is in
writing or is a privileged will made under section 26.
Wills by citizens executed in Malaysia
28.  A will executed within Malaysia by a citizen (whatever may
be the domicile of such person at the time of making the same or
at the time of his death) shall as regards movable property and
immovable property situate in Malaysia be deemed to be a will
executed for the purpose of being admitted to probate in Malaysia
if it is executed in the manner required by this Act.
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Change of domicile not to invalidate will
29.  No will shall be held to be revoked or to have become invalid
in point of form nor shall the construction thereof be altered by
reason only of any subsequent change of domicile of the person
making the same.
Construction of wills
30. (1) A will made in any of the States of Selangor, Perak,
Negeri Sembilan or Pahang before the coming into force of this
Act and a will made in either of the States of Penang and Malacca
shall, if such will would immediately before the commencement
of this Act have been construed in accordance with the Wills
Enactment 1938 [F.M.S. 5 of 1938], of the Federated Malay States
or the Wills Ordinance of the Straits Settlements [S.S. Cap. 53]
respectively, continue to be construed in accordance with such
provisions, notwithstanding any repeal of that Enactment or
Ordinance.
(2) For the purposes of subsection (1) a will re-executed,
re-published or revived by a codicil shall be deemed to have been
made at the time when it was so re-executed, re-published or
revived.
(3) Save as provided by subsection (1) and subject to this Act,
section 100 of the Evidence Act 1950 [Act 56] shall apply to the
construction of all wills required to be construed in accordance
with the law of Malaysia as if the words "in the Settlements or
either of them" appearing in such section had been omitted.
31.
(Omitted).
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LAWS OF MALAYSIA
Act 346
WILLS ACT 1959
LIST OF AMENDMENTS
Amending law
Short title
In force from
Act 23/1967
Interpretation Act 1967
18-05-1967
Act A331
Wills (Amendment) Act 1976
27-02-1976
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Laws of Malaysia
ACT 346
LAWS OF MALAYSIA
Act 346
WILLS ACT 1959
LIST OF SECTIONS AMENDED
Section
Amending authority
In force from
4
Act A331
27-02-1976
DICETAK OLEH
PERCETAKAN NASIONAL MALAYSIA BERHAD,
KUALA LUMPUR
BAGI PIHAK DAN DENGAN PERINTAH KERAJAAN MALAYSIA