A Will serves as the final and legally binding instruction for distributing a person’s assets. In Malaysia, a valid Will helps simplify the probate process and reduces delays. However, even a small mistake can make the document defective. When this happens, Executors and beneficiaries may face long and costly legal disputes.
Many families therefore ask a critical question during probate: What options are available when a mistake in a Will is discovered?
This guide explains the most common errors found in Wills, the legal consequences of those mistakes, and the formal remedies available under Malaysian law. It also outlines how the law allows corrections to ensure the Testator’s true intentions are ultimately carried out.
1. Classifying Errors in a Will: Description vs. Omission
When dealing with Errors in a will and how to fix them, it is crucial to first understand the nature of the flaw. Malaysian courts categorize Will defects primarily into two types: errors of description and errors of omission.
Errors of Description (Misdescription)
This occurs when the Will misstates or incorrectly describes an asset, a beneficiary, or an appointed Executor.
- Common Examples: Listing the wrong bank account in a will (an incorrect account number, wrong branch name, or misspelling of the bank’s legal entity), or providing incorrect information in a will regarding a property’s title.
- Consequence: Financial institutions adhere strictly to the principle of “strict compliance.” Any discrepancy between the Will and official records will typically lead the bank to freeze the transfer of the specified asset. This is the primary trigger for the Executor to find out if Can a will be corrected.
Errors of Omission
This refers to the accidental exclusion of an asset or a part of the estate from the Will.
- Common Examples: The Testator acquiring a significant asset (like a new unit trust or a property) after executing the Will and failing to update the document.
- Consequence: The omitted asset will be treated as an intestacy (dying without a Will). This means the asset will be distributed according to the Malaysian Distribution Act 1958/1997, bypassing the specific beneficiaries named in the Will itself.
2. Navigating Legal Recourse: How to amend a will (Post-Mortem)
While the Testator is alive, How to amend a will is straightforward (via Codicil or drafting a new Will). However, dealing with Will mistakes after death requires formal legal action by the Executor.
The Initial Administrative Fix: Statutory Declaration
For minor, obvious clerical errors (e.g., a single digit off in the bank account number, or a small misspelling), the Executor’s lawyer may be able to prepare a Statutory Declaration (SD).
The SD is a sworn statement, accompanied by proof (such as the correct bank statement), testifying that the incorrect detail in the Will was a genuine mistake that does not alter the Testator’s clear intention for the asset’s distribution. Banks may accept this to proceed, avoiding court action.
The Ultimate Judicial Fix: Seeking Court Intervention
When the error is substantial, the bank refuses the SD, or the wording is ambiguous, the Executor must petition the High Court for resolution.
- Rectification Order: The Executor applies for this order when the Testator’s intention is clear but a clerical mistake occurred during the drafting of the Will, such as listing the wrong bank account. The Court reviews external evidence and amends the Will to reflect the Testator’s true intention.
- Construction Summons: The Executor applies for this when the Will contains unclear or ambiguous wording. The Court then interprets the clause to determine its correct meaning.
Both court processes are costly, protracted, and can add many months to the estate administration timeline.
3. Prevention is Key: Utilizing Modern Solutions to Avoid Incorrect Information in a Will
The most effective answer to the question, “What happens if a will has errors?”, is to prevent those errors from occurring in the first place. This is where digitalisation and structured planning play a critical role.
Traditional will-writing methods often rely on the Testator’s memory and manual data entry. This approach increases the risk of incorrect information appearing in a Will.
- Structured Data Input: Modern platforms such as the SmartWills online platform help prevent common clerical errors. These services operate in a neutral administrative role within the estate-planning process. They use guided and structured questionnaires that prompt users to enter precise details, including the full bank name, account type, and complete account number. This approach significantly reduces the risk of incorrect information or wrong bank account details appearing in a Will.
- Encouraging Dynamic Review: Personal wealth in Malaysia changes over time. To address this, the SmartWills online platform includes automated reminders and a user-friendly interface. These features encourage Testators to log in regularly to review and update their asset details. As a result, the platform helps prevent errors caused by outdated information.
Conclusion
While the law provides pathways for addressing a Mistake in a Will, these judicial solutions come at a high cost of time and money to the bereaved family. For Malaysians seeking peace of mind, the emphasis must be on precision and dynamic maintenance. Leveraging structured, modern tools like the SmartWills online platform ensures that the final legal document accurately reflects the Testator’s true intentions, guaranteeing a smooth and timely asset transfer for their loved ones.
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