Witnesses for Wills in Malaysia: Simple Rules for a Bulletproof Will
By - Jeremy G
When it comes to making a will, choosing the right witnesses is more than just a legal formality—it’s the foundation of ensuring your will stands up in court if challenged.
In Malaysia, laws surrounding wills, witnesses, and probate require careful attention to detail to prevent disputes and ensure your wishes are honoured.
In this guide, we’ll explain the role of witnesses, who can (and can’t) act as one, and why their involvement is critical for a smooth probate process.
Why Witnesses Matter in Wills
Witnesses are essential to verify that your will is legally valid. They serve to:
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Confirm the will’s legitimacy
Witnesses verify that the will was signed willingly by the testator (the person making the will) in their presence.
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Prevent fraud and disputes
Witnesses help ensure the will was not created under coercion or forged.
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Support probate, if needed
If the will is contested, witnesses may be asked to confirm the signing process in court.
Legal Framework for Wills in Malaysia
For Non-Muslims
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Governed by the Wills Act 1959, a valid will requires:
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The testator to be at least 18 years old and of sound mind.
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Two witnesses who were physically present when the will was signed.
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Witnesses who are impartial (not beneficiaries or their spouses).
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For Muslims
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Wills (wasiat) are governed by Syariah law, which limits the distribution of assets to one-third of the estate unless heirs’ consent.
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Witnessing requirements align with Islamic principles, ensuring compliance with religious guidelines.
Who Can Be a Witness?
The ideal witness must meet the following criteria:
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Neutrality
Witnesses should not benefit from the will, directly or indirectly.
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Legal eligibility
Witnesses must be over 18 and of sound mind.
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Reliability
Witnesses should be trustworthy and capable of testifying if disputes arise.
Who Cannot Be a Witness?
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Beneficiaries and Their Spouses
Under Section 9 of the Wills Act 1959, any gift or benefit to a witness (or their spouse) is void, even if the rest of the will remains valid.
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Parent of a Beneficiary Child
If a child is a beneficiary, a parent who indirectly benefits through the child’s inheritance should avoid serving as a witness. This could raise questions about impartiality and complicate the inheritance process.
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Guardian Assigned in the Will
While a guardian can legally act as a witness if they do not benefit from the will, it’s best to avoid this to prevent conflicts of interest.
What Happens If a Witness Dies Before the Testator?
If a witness dies before the will is executed:
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The will remains valid
The witness’s presence at the time of signing is what matters, not their availability later.
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Probate may involve additional steps
In some cases, the court may require other forms of evidence to verify the will’s validity if the witnesses are unavailable.
Affidavits and Their Role in Probate
An affidavit is a sworn written statement used as evidence in legal proceedings.
In the context of wills, affidavits from witnesses can streamline probate by confirming the signing process and avoiding the need for in-person testimony.
Many probate lawyers in Malaysia obtain witness affidavits when the will is signed, even though this is not always legally required. This proactive measure:
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Prevents disputes
Affidavits provide documented proof of the will’s validity.
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Speeds up probate
Judges often accept affidavits as sufficient evidence, reducing delays.
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Minimises litigation risks
Having affidavits ready addresses potential claims of irregularities.
Best Practices for Choosing Witnesses
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Select Neutral Parties
Ideal witnesses include trusted friends or professional advisors (e.g. your will writer) with no personal or financial interest in the will.
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Avoid Potential Conflicts
Do not choose beneficiaries, their spouses, or others closely connected to the estate to ensure impartiality.
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Plan for Long-Term Validity
Choose reliable witnesses who are likely to be available if the will is contested in the future.
Key Questions About Witnessing
Can a Guardian Assigned in the Will Be a Witness?
Yes, if the guardian is not also a beneficiary of the will.
However, it’s better to avoid this to eliminate any perceived conflict of interest.
Can a Parent of a Beneficiary Child Be a Witness?
No, if the parent is deemed to benefit indirectly through the child’s inheritance.
This could create unnecessary complications.
Is an Affidavit Mandatory for Probate?
Not always. Affidavits are typically required only in contested cases.
However, obtaining them proactively is a smart way to prevent future delays or disputes.
What Happens After the Testator’s Death?
Witnesses have a minimal role after the testator’s death unless the will is contested.
In such cases, witnesses may be asked to:
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Testify in court about the signing process.
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Provide an affidavit confirming the will’s execution.
If the will is clear, valid, and uncontested, witness involvement is usually unnecessary during probate.
Contact Malaysia Funeral Today
Witnesses are the foundation of your will’s validity, ensuring your wishes are respected and your loved ones avoid unnecessary legal battles.
Choosing the right witnesses and following proper procedures can make all the difference.
At Malaysia Funeral, we specialise in guiding clients through the will-writing process, ensuring compliance with legal requirements and best practices.
Partnering with SmartWills, we offer professional and low cost will-writing services starting at just RM388.
Contact us now to safeguard your legacy and gain peace of mind.
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