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Yes! Your Mother’s Will Is Valid but with a Thousand Apologies It Is Not Functional

ipoh | August 17, 2010 | 0 Comments

Occasionally, I have been asked by family members of the deceased to explain some of the contents in the will written by the deceased themselves or with the assistance of someone else. One of the wills shown to me leaves me no choice but to tell the son that ‘Yes! Your mother’s will is valid but with a thousand apologies it is not functional’. In this will there are two executors appointed jointly and it has 2 witnesses which makes the will valid. However, I discovered further that two of the joint executors appointed are the brothers of the deceased, one of whom is paralysed and bedridden. The other brother is now recovering from heart surgery. Both of them are in their 60s, illiterate and have also been depending on the financial assistance of the deceased.

The will further states in one paragraph that all the movable and immovable assets in the estate must be given to the deceased three grandchildren aged 13, 10 and 8 equally without mentioning anything further. Apparently, during the lifetime of the deceased, she had been financing all the living expenses of the three grandchildren because the father of the children who is her son was incapable of caring for his children financially and also has a sour relationship with her. In addition, she also could not trust her husband either.

The first question to ask is how is this will going to function when the executors are in such poor health? Presuming that one of them recovers, then how is he going to take up the responsibility when the will states that two executors must act jointly and to replace them with another person would require the consent of all the beneficiaries of the deceased? Then there is the issue of distribution which states that all movable and immovable assets must be given to the three grandchildren. So, how are the grandchildren going to receive these assets when there are still minors knowing the fact that they need the money on a daily basis? Very often many people who have this kind of wills are ill-informed because they are unclear over the contents of the will. All they know is that as long as they have appointed the executors and have two witnesses then it would be sufficient. Some of them also told me that once the will is sealed in an envelope, they could not open the envelope because if they do then they will be disqualified. So my question to them is what are they disqualified from and their response to me is “I don’t know”.

Assuming that you are in this position and still alive, you can avert or minimize this problem by choosing the right executors. You may not make a perfect choice but at least choose executors who are trustworthy, not too old and healthy. However, if you have a problem like the above, then it is strongly advisable to choose a trustee company like Rockwills Trustee Bhd to be the estate’s main executor because it has the expertise, impartiality, professionalism and perpetual existence. If all your grandchildren are still minors then it must be clearly written in the will how much of money deriving from the movable assets, such as bank a/c, investment in unit trust and share market, is required to finance their living, medical and education expenses on a monthly basis and when is it going to end? With regards to immovable assets such as landed properties, it is up to you to determine at what age your grandchildren are going to receive these assets. Anyone above 18 years old would be able to register themselves as owners of assets. Since all your assets are going to be frozen if you pass away, then you are strongly advised to set up a private trust such as an insurance trust to provide immediate funding for your grandchildren while the executor/s waits for the probate to unlock your assets.

Peter Lee is an Associate Estate Planning Practitioner (Wills & Trust) with Rockwills International Group. He is also an Islamic Estate Planner providing Wills & Trust services for Muslims. He is based in Ipoh and can be reached at: 012-5078825/05-2554853 or excelsec@streamyx.com.