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e-Sulam 2020
1. Brief explanation on partial intestacy
During the interview session, Mr. Yee has explained a lot about partial intestacy based on his knowledge and experiences. Basically, partial intestacy occurs when the testator has left a will but some of his estate has not been disposed of in the will. Hence, no proper instruction is given by the testator to distribute the property that has not been stated in the will.
2. Brief explanation about the procedure on how the will is executed right after the death of the testator
Due to the existence of partial intestacy in will, there are several procedures that a lawyer needs to follow as explained by Mr. Yee. He said that if the partial intestacy is involved with immovable property, a lawyer has to advise the person who is responsible for the distribution of the estate to apply to the Land Office of the district of the testator for a Small Estate Distribution Order. If the partial intestacy is not involved with any immovable property but only movable property, then a Letter of Administration (LA) needs to be applied to the High Court. He also mentioned that the High Court will not accept the application of LA if the partial intestacy matter has been referred to Amanah Raya Berhad because they also has authority to grant Letter of Administration.
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As far as positivism is concerned, laws governing partial intestacy were enacted to promote justice. We all know that not all humans can accept the fact that they need to share some property with other people. However, with the existence of the law and regulations, the property can be divided in a fair way and justice can be promoted as all the rightful people can get their part on the property.
3. What are the usual circumstances for partial intestacy to happen in real life?
Based on Mr. Yee’s twenty years of experience handling cases on partial intestacy, the usual circumstances for partial intestacy to happen is when the testator does not reveal all estate that he has, for example their money in KWSP account, Amanah Saham account or savings accounts. Mr. Yee said that lay people do not have the knowledge that if they did not mention all the estate that they had especially their money in any savings accounts, the money will become partial intestacy. The lay people tend to think that only big properties such as houses or vehicles need to be mentioned in the will. In order to avoid partial intestacy from happening, it is a job of a lawyer to ask the testator what property that they have aside from what has been listed in the will, especially their money in savings accounts.
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Actually, there is no requirement for the lawyer to ask the client regarding other property that has not been mentioned in the will because as we know, they have their own right on what property that they want to list down in their will. However, by doing so, partial intestacy can be avoided and bring ease to the executor in managing and distributing the estate. Also, by doing so, indirectly the lawyer has supported one of the principles of nature which is, good is to be done and promoted and evil is to be avoided.
4. What is the worst legal effect of having partial intestacy that could happen towards the will?
According to Mr. Yee, partial intestacy does not give any bad effect towards the will because as a lawyer whom is also a solution provider, they will find a solution for the client so that the estate can be distributed to the beneficiaries. It is the duty of the lawyer to identify what kinds of property that has been said as partial intestacy, whether it is immovable property or movable property. Based on the type of property, the executor need to follow the said procedure in managing the estate which it will be distributed according to the Distribution Act 1958.
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Even though Mr. Yee said that there is no bad effect that can arise, however the family of the testator might still facing certain problem accordance to the testator’s will. Since Mr. Yee said that a lawyer should act a solution provider, thus it is the duty of the lawyer to come out with a solution that can help the problem to be solved.
5. In your opinion, do you think the current existing law that governs partial intestacy is harsh to be imposed? Does it necessarily need to be amended?
In accordance with the response given by Mr. Yee, he believes that the harshness in the law of partial intestacy does not exist. He responded by asking our opinion that if the harshness is present, then what are the methods or law that should be amended. Our member said that those who cannot afford to pay such procedure would be highly affected especially if the will does not cover all of the estates, it will lead to partial intestacy.
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By the virtue of the positivist theory, whenever the law has mentioned it to be in such a particular way, any person who was imposed through it shall obey and any failure will somehow result in a sanction. In the sense that whenever the party fails to provide a full disclosure upon the assets and properties in making a will, therefore such failure lead them towards partial intestacy. I have to admit, it is irrelevant for us to consider partial intestacy to be within the failure because the law of partial intestacy is to help the individual in handling their matters in regard to the properties. Here we can conclude that, based on the naturalist view, morality is prominent as well. It is sufficient for the law of the partial intestacy to exist with the provided procedure in order to govern the estates which were overlooked by the parties.
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Nonetheless, one of us added that the harshness as we claimed earlier on, was unnecessary because we believe that it’s fair to be that way. Whenever the person intended to give his estate to a specific person, he should have included it in a will. However, his failure in doing so makes the partial intestacy law comes into the frame by distributing the unmentioned estates after the testator dies.
6. Is there any mechanism that shall be practiced in order to avoid partial intestacy?
As far as the question is concerned, our members believe that the partial intestacy is quite expensive to be enforced, as the procedure also is lengthy. In our opinion, awareness of the people in regard to the people in making the will is vital. This will broaden their mind in order to understand better the concept of the will nature. Regardless, Mr. Yee had given his perspective on part of this issue. He addressed that, it is normal for some procedural matters to be expensive as well as highly time consuming. He added that it is impossible for us to avoid those matters because by avoiding them, those legal practitioners are no longer required in our country. Plus, he simply explained to us a case that he used to handle back in the days, where there was a husband and wife who came to him in making a will. As expected, the will was not fully covered all of those properties. Then, when the husband died, the wife came to him week in week out, just to add more assets into the list. Mr. Yee had convinced us that the nature of human beings is hard to control. He agreed with our opinion but to curb such issues, it is definitely out of hand. Nonetheless, he responded to us whether we ever heard of residuary clauses which is to be discussed in the next question.
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​In regard to jurisprudence, by the virtue of sociological view, the well-being of the society shall be viewed to be the importance of the law. In our opinion, we agree that the benefits to the society should be acknowledged in order to achieve fairness and justice. Hence we truly believe awareness towards the people about the importance of will should be prioritized. This can prevent any misguidance towards the community. Besides, by the view of neutralist, what ought to be done, shall be done. In the way that the party had failed upon his disclosure on the will, therefore it is vital to follow the next step which is partial intestacy procedure in order to avoid any loss on properties transferred.
7. Whether it is compulsory to insert the residuary clause in the will?
One of us had proposed a question about the necessity of a residuary clause in the will. Mr. Yee had mentioned that it is highly recommended for a party who is making a will. Other than that, he also emphasized that it helps in taking care of everything such as any matters that they might not have thought of when drafting a will or on what property that they accumulated after done preparing the will. It must be noted that it is not the law that imposed such residuary clause to be inserted into a will, but it is more to a recommendation as it brings advantages to the parties. For instance, any matter that is missed or overlooked by the party will be protected and be given to the beneficiaries. At the same time, it can avoid any conflict in distributing the properties to the beneficiaries. Thus, if there is no residuary clause and the testator failed to put the properties within the will, it will fall under partial intestacy.