Insights
A will lets you decide who inherits what. But a will only works if it is made the right way. Malaysian law asks two simple things of every will: that it was signed properly, and that it was made by someone with a sound, free mind. Get either wrong and the whole will can fail — leaving your estate to be shared out by a formula you never chose. Here is what the law expects, in plain terms.
Which law applies to you
For non-Muslims in Peninsular Malaysia, wills are governed by the Wills Act 1959. Muslims' estates follow Islamic law and faraid, and Sabah and Sarawak have their own rules. Everything below is about a non-Muslim will made in Peninsular Malaysia.
The signing rules — get these exactly right
The law is strict about how a will is signed. These steps are not optional, and there is no "close enough." A valid will must be:
- In writing — typed or handwritten.
- Signed by you at the end of the document — nothing important should come after your signature.
- Signed, or your signature acknowledged, in front of two witnesses who are both present at the same time.
- Signed by those two witnesses while you are watching.
One more trap worth knowing: a witness — or a witness's husband or wife — should never be someone who inherits under the will. If they are, the gift to them is cancelled, though the will itself still stands. The safe rule: never let a beneficiary, or a beneficiary's spouse, act as a witness.
A "sound mind" — what it really means
You must have a "sound mind" when you make the will. In plain terms, at the time of signing you should understand:
- That you are making a will and what it does;
- Roughly what you own; and
- Who might reasonably expect to be provided for — spouse, children, and so on.
Importantly, being old, ill, or physically weak does not, by itself, make your will invalid. You can be seriously unwell — even close to the end — and still make a perfectly good will, so long as your mind is clear enough to understand those three things. What defeats a will is a genuine mental disorder or delusion that affects your judgement at the moment you make it.
Knowing what you signed — and signing freely
Two more things must be true. First, you must know and approve the contents — the will must say what you actually wanted, not what someone else slipped in. Second, you must sign of your own free will, without being pressured or coerced. Gentle persuasion by family is normal and allowed; overbearing pressure that overrides your real wishes is not.
The court becomes especially watchful where the arrangement looks suspicious — for example, where the person who arranged the will is also the main person benefiting from it. In that situation, the people relying on the will have to satisfy the court that it genuinely reflected the deceased's wishes.
What happens if something is wrong
How a court reacts depends on which requirement failed. It helps to think of two different situations.
A signing mistake. If the formal signing rules were not followed — say, the two witnesses were not together, or a witness signed when the will-maker was not present — the will is simply void. The court cannot "fix" it, no matter how clear the person's intentions were.
A mind or pressure challenge. If someone argues the will-maker lacked capacity, didn't understand the will, or was pressured, the court weighs the evidence. The people putting forward the will must prove it was properly made; anyone alleging pressure must prove it.
In either case, if the will fails, the estate is shared out under an earlier valid will, if there is one, or failing that, under the fixed intestacy formula in the Distribution Act 1958 — which may look nothing like what the deceased wanted.
A recent warning from the courts
In a 2025 decision, the Court of Appeal set aside the will of a 97-year-old man who was illiterate and wheelchair-bound. Even though the will had two witnesses and was prepared by a lawyer, the court was not satisfied that his capacity had been properly established, and there were troubling circumstances — the will was signed in a car and then kept in the sole control of those who benefited from it. He was treated as having died without a will.
The "Golden Rule" for elderly or unwell will-makers: have a doctor confirm and record their mental capacity at the time the will is made.
That practice is not strictly required by law — but as this case shows, skipping it can leave a will dangerously exposed to challenge later. The decision is reported as Kong Kin Lay & Ors v Kong Kin Siong & Ors [2025] CLJU 2170, Court of Appeal.
How to make sure your will stands up
- Have your will properly drafted and its signing supervised, so the two-witness rule is followed to the letter.
- Keep beneficiaries, and their spouses, away from witnessing or arranging the will.
- If you are elderly or unwell, arrange a doctor's note confirming your capacity on the day.
- Give instructions yourself, and make sure the will is read over and explained before you sign — especially if it is not in your first language.
- Store the signed original safely and independently, not in the hands of one beneficiary.
- Review your will after major life changes — marriage, divorce, children, or a significant change in your assets.
This article is prepared by Cindy Ng & Co., Advocates & Solicitors, for general information only. It does not constitute legal advice and does not create a solicitor-client relationship. Please seek specific advice for your own circumstances. To discuss a will, testamentary trust, or estate matter, please contact Cindy Ng & Co. — we would be glad to assist.