Can you write a will while you live in Malaysia?
As the COVID-19 pandemic rages on, international travel and cross-border relocations have decreased dramatically. Nevertheless, people continue to work, invest, and settle in various parts of the world, including Malaysia. According to the third quarter of 2020, there are 2.92 million non-citizens from all over the world residing in Malaysia, with many possessing the financial power to make large purchases such as cars and real estate properties. This raises the question of what happens to a non-citizen’s property when they die and leave a will. This article explores the enforceability of a foreign will in Malaysia and the possibility for non-citizens to create a localised Malaysian will.
A foreign will is one made outside Malaysia by persons who are not domiciled in Malaysia. The term “domicile” refers to the country where a person treats as their permanent home, or lives in and has a substantial connection with. Two essential elements determine one’s domicile: factors of residence and intention to reside permanently for an indeterminate period in the country of choice. The Malaysian courts recognize the validity of international wills, which can be enforced via resealing the grant of probate if the grant of representation was obtained in a Commonwealth country. For a grant of representation from a non-Commonwealth country, a fresh application for letters of representation must be made to the High Court of Malaya to enforce the will in Malaysia.
When it comes to the distribution of assets under a foreign will, a different set of laws may apply to govern different classes of assets. Immovable assets, such as real estate properties, are governed by the laws of the locality (lex situs). For the disposal of a foreigner’s movable properties, such as vehicles, bank accounts, and personal belongings, the relevant laws applicable would be the laws of his or her domicile (lex domicilii).
To enforce a will in Malaysia, especially when the testator owns properties in Malaysia, it may take a long time to go through the whole process of obtaining the grant of probate from the domicile Court and re-sealing it in Malaysia through an application to the Malaysian High Court. A more practical option for a testator who wishes for a speedier enforcement of their will in Malaysia is to create a separate will specifically for assets located in Malaysia. It is also recommended for the executor appointed under the will to be based in Malaysia so as to ensure their physical presence in Malaysia in order to properly administer the estate and fulfil their duty as an executor. Creating a Malaysian will and appointing a Malaysian executor may also be convenient for executors in the domicile country, as the Malaysian executor would be empowered to dispose of and transfer the liquidated assets to the executors in the domicile country to be distributed to beneficiaries in that country, as provided for in section 63 of the Probate and Administration Act 1959.