“Most people consider the proper distribution of their property on death a vitally important matter. For those who are elderly, ill or engaged in risky occupations, it is often urgent to get such things settled fast. But some people may be in circumstances where they cannot comply with the formal requirements for a valid will. The law has long recognised this concern in the case of soldiers and sailors by allowing them to create privileged wills. Many jurisdictions, including Malaysia, have legislation to this effect. Today, “soldiers being in actual military service” and “mariners or seamen at sea” can make privileged wills using any form of written or oral words, provided that they are a deliberate expression of the testator’s wishes and are intended to have testamentary effect. However in recent years academics and law reform commissions from various jurisdictions have called for the abolition of privileged wills.”
Introduction
In this assignment, we will look into the privilege will in Malaysia and then compare to one country and the country that we have chosen is USA. What is privilege will?
A privileged Will is an informal will which remains valid even though it does not comply with the formalities and legal requirements of a valid will. Privileged wills are normally in written form but can also be oral. What distinguishes this type of Will from a conventional Will is the fact that normal formalities are dispensed with. Therefore, for instance a privileged will does not need to be signed in the presence of two independent witnesses . In fact there is no need for the presence of any witnesses in order for the will to be valid . Besides that, any alterations to a privileged will does not need to be witnessed. The will be presumed to have been made while the maker of the will still had privileged status, even if their circumstances have changed. In addition to that, privileged wills can be made by people under the legal age of 18 years old. So the ability to make a privileged will still has its advantages, especially for youngsters who are joining up.
In Malaysia, only certain individual is eligible to make privileged will where testator does not need to confer with the formalities required under S. 5 of the Wills Act. Section 26(1) of the Wills Act stated that member of the armed forces of Malaysia being in actual military service, and a mariner or seaman (including a member of the naval forces of Malaysia) being at sea may dispose of his property or of the guardianship, custody and tuition of a child or may exercise a power of appointment exercisable by will by a privileged will. Hence privilege will in Malaysia position need the soldier to be in a formal state of war or there must be some “war like” operations.
After all in Malaysia , under S.26(5) a privilege will shall cease to be a valid will after one month of the testator ceasing to be have the privilege provided he is still alive . This differs from the UK where a privilege will remains operative until being revoked. In fact, our law is very much alike to Roman Law in this aspect where a soldier’s will lapsed after he is discharged from duty. Therefore privilege will revokes all prior wills as privileged will can also be revoked by an informal writing declaring an intention to revoke. This is because if a person is able to make a privileged will without formalities, he should be able to revoke the will in a similar way.
Now, we will discuss more in detail on privilege will in Malaysia and also privilege will in USA.
Privileged wills in Malaysia
Privileged wills are wills that are made under circumstances whereby some unforeseen circumstances occur which is unable to comply with the usual formalities of making a will. Privileged wills is defined as when a soldier in actual military service, a seaman (naval forces) at sea, who are entitled to make a will. A privileged will may be in oral or in writing and it does not required to be signed by the testator. This type of will is considered legal when the individual is engaged in times of war.
In Malaysia, it is clear that a seaman can write such will. But a member of armed forces has a different qualification. A member of the armed forces has to be in actual military service when such a will is made. [1] The law looks at whether there is a military operation and whether the person making the will is involved in such an operation. This means that a member of armed forces must be actually in the process of facing war and in the state of war.
Under Section 26(1) of the Wills Act 1959, a privileged may be made by any soldier in Malaysia being in actual military service. This section connotes that clearly the Parliament did not intend that every soldier should be entitled to make a privileged will, only those in actual military service? This part of the Wills Act provision gives some uncertainty and ambiguity. What does ‘actual military service” mean? An example is during the Emergency in our country, following the end of World War II. In the Will of Anderson [2] which arose after the death in action of an Australian soldier while he was involved in what the report stated an ‘’armed and organized aggression and violence against the government and the people of Malaya designed to overthrow the government by force.’’ The issue here is whether the deceased is considered to be in actual military service? The trial judge uphold such a declaration, he went on to say, ‘’In the present case, there was no state of war and it is difficult to see how there could have been, for there was no nation or state with which a state of war could have been proclaimed to exist, but in all other respects there was no difference between the situation of a member of this force and that of a member of any military force in time of war. In my opinion the deceased was in actual military service and it would be unreasonable to hold otherwise.’’
Based on the above judgment, it can clearly be seen that is it not necessary for a war to exist in order for a privileged will to be known or recognized. Hence, the position of privileged will in Malaysia can be said that a person is privileged when he goes out on duty in such situation. Besides, on the part of actual military service, the position in the UK is rather similar with Malaysia. [3] This can best be seen in a UK case with similar position. In the case of Re v Wingham, [4] the testator joined the Royal Air Force during the World War II and was sent to Saskatchewan, Canada to complete his training. There he made an unattested will and died a few months later in an aircraft accident. The court unanimously held that the testator was entitled to make a privileged will. This can be said that the testator was on actual military service when the will was made since inter alia he was at any time liable to be ordered to some area to take part in active warfare.
A soldier can be in actual military service even though there are no military operations, provided that they are believed to be imminent, as it is clear in Re v Wingham. Another common law case will be used to show the position of Malaysia’s privileged wills. In the case of Re v Rippon, [5] the testator was an officer in the Territorial Army, made a will after being ordered to rejoin his artillery battery, but before the Territorial Army was mobilized. It was held that he had been on actual military service when he made his will.
As for a seaman, mariner or member of a naval force of Malaysia, a privileged will can be in writing and need not be in actual military service when the will is made. The term ‘mariner or seamen being at sea’ includes not only members of the merchant navy and Royal Navy but also anyone serving in essentially a civilian capacity in the merchant navy. Thus, a common law case again has the similar position in Malaysia. In the Goods of Hale, [6] a typist regularly employed an ocean-going liners was held to be a ‘seamen’. She worked for the Cunard Steamship Company primarily on the Liverpool-New York crossing, and was one of the victims when the ship sunk by a German submarine.
On the other hand, Section 26(1) of the Wills Act provides that a ‘ mariner or seamen at sea’. What is the meaning of ‘at sea’? The term has been interpreted widely. Maritime service on lakes, rivers and canals can generally be considered as at ‘sea’. In the Goods of Austen, [7] a codicil made by Admiral Austen while on a naval expedition on the Rangoon River was held to be privileged.
Privileged wills can be made without any formalities. Writing is not strictly required and an oral will is valid as well. Nor witnesses are required. However, a privileged will is not valid indefinitely. It becomes null and void one month after the testator is no longer entitled to make a privileged will.
Compare and contrast Malaysia’s position with the United States of America (USA)
Privileged will is also known as a ‘death-bed will’ or a ‘nuncupative will’ in some other countries. The concept is relatively the same. A nuncupative will results from a testamentary statement from a person who thinks he or she is dying soon. Just like Malaysia, most wills must be in writing except for a nuncupative will. For an instance, in the USA, a nuncupative will is the only exception to the North Carolina requirement that a will be in writing.
In general, for a nuncupative will to be legally effective, the testator must first believe that they are about to die, then make an oral statement to at least two competent witnesses who are both (or all if more than 2) present with the testator at the time of the declaration. The testator’s statement must show clear intention that it is intended to be a will and include a request that the witnesses testify to the will. After that, the testator must actually die from the perceived threat and within a considerable period of time. The beneficieries to such will will have to bring a legal action to probate the nuncupative will and the witnesses will have to testify. Even after all these are done, the will is still not considered valid for the transfer of real estate.Â
A minority of U.S. states (approximately 20 as of 2009), permit nuncupative wills under certain circumstances. [8] Under most statutes, such wills can only be made during a person’s “last sickness,” must be witnessed by at least two or more persons, and reduced to writing by the witnesses within a specified amount of time after the testator’s death. Some states limits the types and value of property that can be included in a nuncupative will. In the USA, a will does not effect retirement accounts, investment accounts, or life insurance policies, etc., that have a beneficiary designation, nor any accounts with a pay-on-death beneficiary. [9] Only a few American states allow legally effective nuncupative wills to be made by military personnel on active duty. Under the law in Malaysia, privileged wills(oral wills) are permitted to military personnel and merchant seamen on duty.
A deathbed will is created when a testator is at risk for immediate death. This particular phrase “on their deathbed” describes a situation where an individual is near death and expects death soon. For an instance, it is usually used on terminally ill patients or patients that are about to dieno matter where they are.  It can be safely assumed that people who are “on their deathbed” may not have executed a valid will to distribute their properties after their death. Where such situations arise, a deathbed will can be drafted. However in Malaysia, there is no provision in the Wills Act that covers the situation mentioned above.
A deathbed will is often regarded to be risky. Such will is often drawn together very quickly and without putting in much consideration.  Drafting a proper will would normally requires legal guidance from an experienced attorney who has ample knowledge in probate law to avoid errors and potential contesting of the will.
However, given such nature of a deathbed will, it can be very easily challenged by an unsatisfied beneficiary or persons not included in the will.  For example, if the first legitimate daughter believe that she is entitled to more than what she deserves of his father’s estate, she may challenge the deathbed will. A person would most probably make a deathbed will in the weakest health condition. Thus, it is debatable whether that person had mental capacity to make a valid will. Such will can also be claimed that it was forced, or fraudulent. Before I proceed further, it is important to note that different states in the USA have different provisions under the law governing wills.
The state of Tennessee legally recognizes three types of Wills. This type of Last Will and Testament is referred to as a Nuncupative Will in the Tennessee statue. It is known to be as the most difficult will to crystalise and is very restrictive regarding the value and type of estate that may be bequeathed in this manner. Under the Tenessee Code, a nuncupative Will is an oral declaration from the death bed when the testator sincerely believes he or she is about to die from any impending peril, either illness or trauma or other circumstances. In order for the Will to be valid, the testator must actually die from the illness, trauma or circumstance that prompted the noncupative declaration. The testator cannot amend any other valid will that precedes the verbal declaration. The deathbed declaration must be witnessed by two disinterested parties, after that it must be written down within thirty days following the declaration, and at last be submitted for probate within six months following the death of the testator.  Property so bequeathed cannot have a value in excess of $1000 for a civillian and $10,000 for someone in who is active duty military. [10] In Malaysia, only persons allowed under the Wills Act can make privileged will and they are not restricted by any amount of estate that can be included in their privileged will.
As in Texas, under the Texas Probate Code section 86: ‘Proof of Nuncupative Wills’, [11] (a) no nuncupative will shall be proved within fourteen days after the death of the testator, or until those who would have been entitled by inheritance, had there been no will, have been summoned to contest the same, if they desire to do so; (b) after six months have elapsed from the time of speaking the alleged testamentary words, no testimony shall be received to prove a nuncupative will, unless the testimony or the substance thereof shall have been committed to writing within six days after making the will; (c) when value of estate exceeds $30. When the value of the estate exceeds $30, a nuncupative will must be proved by three credible witnesses that the testator called on a person to take notice or bear testimony that such is his will, or words of like import. In Malaysia, there is rather no provision that restricts the value of estate that requires more than two witnesses.
On the other hand in Georgia, section 53-2-47 (Pre-1998 Probate Code) of the Georgia code [12] a nuncupative will is an oral will, declared by a testator in extremis or under circumstances considered equivalent thereto, before witnesses, and afterwards reduced to writing. In 53-2-49 [13] regaridng reduction to writing, the substance of the testamentary dispositions of a nuncupative will must be reduced to writing within 30 days after the speaking of the same, or the will shall be invalid. And in 53-2-50 [14] regarding designation of property which may be disposed of includes all property, real and personal, may pass by a nuncupative will which is properly made and proved. In Malaysia, there is no law that requires a privileged will to be reduced to writing form within a limited number of days.
In conclusion, the provisions of the law in different states in the USA may have variances, but all in all the laws regarding deathbed will or nuncupative will as compared to the privileged wills under the Wills Act in Malaysia have several distinctions that are unique in their own ways.
Critically Analyse Question (i)
Privileged wills are last wills and testaments which are made by individual who is currently engaged in military service or at sea where it is impossible to comply with the usual legal requirements of an ordinary will. Hence, the doctrine of privileged wills was established where individual has to be in exact circumstances in order for the privileged will to be valid and be considered a legally binding document.
In Malaysia, Section 26(1) Wills Act 1959 stated that only soldier which involved in actual military service is allow to make a privileged will. [15] However, this act is ambiguous on what amount to actual military service. After all when soldiers are in the process of facing war and in the state of war, the doctrine of privileged will is uphold. The privileged will is significant as when soldiers are fighting in a battle, it is unlikely to access to a legal cousel and may not be in position to secure witnesses to the will. By having this privileged will, the soldier can ensure their property are well-distributed as accordance with their wish. Furthermore, soldiers with high possibility of losing their life during the war shall be entitle to make privileged will so they would not died intestate due to failure of following the formalities of will or sacrificed before create a valid will.
In addition to that, under Section 26(1) of the Wills Act provides that a ‘ mariner or seamen at sea’ are allow to make privileged will. So individual who are at sea which include seaman, mariner or member of a naval force of Malaysia are able to create a privileged will. A privileged will can be in writing and need not be in actual military service when the will is made. However the act itself is silence on what contribute to the meaning of term ‘at sea’. Fortunately, this term has been interpreted widely where maritime service on lakes, rivers and canals can generally be considered as at ‘sea’ . By allowing to create a privileged will, this individuals who spend most of the time at sea will not died intestate without a validly executed will.
Recently, several academics and law reform commissions from various jurisdictions have called for the abolition of privileged wills. Although we can assume Malaysia is a peaceful and safeguard country, but no one can ensure that Malaysia will not involve in any war in the future. If the doctrine of privileged will is abolish, they are no way the soldiers and mariner have the opportunity to make a will which follow the formalities of will. This is due to the difficulty in finding witnesses for the will and any circumstances which further lengthen the process of making a valid will.
The privileged will wills can be made without any formalities and witnesses are not required. Besides that, writing is not strictly required and an oral will is valid as well. In situation if the soldier is engaged in a war, there is no way he can comply with all the requirements needed in order to have a valid will. Hence , if there is no privileged will to supply this loopholes, those privileged person will died intestate. In order words, they sacrificed themselves for the dignity of country but yet they are not given the chance to dispose of their property, determine the guardianship, custody and tuition of a child or to the exercise of a power of appointment. In Will of Anderson, we can further clarify that it is not necessary for a war to exist in order for a privileged will to be recognised. Hence, a person is so privileged when he goes out on duty in such a situation where it does not matter that the enemy is not a conventional army but one made up of assassins or arsonists.
The doctrine of privileged will is often criticised for being outdated and applicable in circumstances which no longer apply . This is due to the modernisation and the advancement of technology which make level of communication easier where the soldiers can easily access to legal counsel to create a will. Furthermore, solders are like to be away for shorter periods which make it unnecessary to create a privileged will. After all , there are various positive and negative comments on the doctrine of privileged will. However, it is strongly advisable to retain and uphold the doctrine of privileged will. Although we are living in peaceful country where it is unlikely to get engage in a war, but this doctrine can ensure that soldiers and mariner which have less opportunity and less facilities to make a properly executed will in times of war. As we cannot ensure that they would not be any war in future times.
Privileged will is not valid indefinitely as it becomes null and void one month after the testator is no longer entitled to make a privileged will. This is consistent with the situation where the practicalities of the situation prevent compliance with the usual formalities. After all, the subjects of privileged will is applicable to non-Muslim in Malaysia. The law relating to Muslims has to be looked at separately from the Wills Act 1959 even though it has many similarities. In addtition to that, non-Muslim in Sabah and Sarawak have their own legislation on this pertaining matter. Although in there is no complete uniformity throughout the country, but the laws are substantially similar.
Therefore I conclude that the doctrine of privileged will shall be uphold and retain in Malaysia to ensure equal protection on the soldiers and mariner. This is to ensure they can make a properly executed will during war where they have less opportunity and fewer facilities . Moreover, this can avoid the family member of soldier an mariner to suffer from loss and protection upon the death of them. At least, if the soldiers and mariner created a privileged will, the family members can carry on their life with the property entitle to them. After all, the Courts have the power to justify whether privilege shall be allowed and prove that the testator had no reasonable chance to make a will in normal form. This can further protect the principle and originality of privileged will.
Critically analyse question (ii)
In this assignment, we are comparing Malaysia priviledge will with USA privilege will which is also known as ‘death-bed will’ or a ‘nuncupative will’ [16] . As we know, nuncupative will is also an oral will, a will where a person made a testamentary statement who thinks he or she is going to die soon. While death bed will is also almost similar to the meaning of nuncupative will which means a situation where a person is dying soon and made a will to show how he or she is going to distribute their properties.
In USA, [17] these types of will are normally made by soldiers. This is because the life of soldiers are unpredictable. They might died in the next minutes or next seconds. Hence, it is alright for them instead of follow the formalities of making a will than making an oral will to distribute their properties. They have no time to go to a law firm and ask the lawyer to help them to draft a will if they are dying soon. In certain states of US, a member of the armed services who suffered from a terminal illness or serious injuries may draft his will orally in front of at least 2 witnesses. However, the oral will must be written down by someone other than the testator in order for the will to be legally binding within a certain period of time. It is normally 30 days from the oral will made by the testator.
However, it have to be clearly known that a nuncupative will in USA does not covers disposal of real property for example land and building. It may only available to cover personal properties. This can be compared to privilege will in Malaysia. In Malaysia, the privilege will can used to distribute anything including personal properties or real properties. Besides that, nuncupative wills cannot be used to revoke or make any changes to an existing written will that has made before it. This is because nuncupative is counted as a privilege for the those who is dying soon since they have no chance to have a legally formal will that is drafted by any legal professional. However, the will made will be invalid if the testators survives from war or cure from his or her illness. Since they are healthy and able to make a will in writing, hence, it is better for them to draft his or her will by legal professional.
We can see that a nuncupative will is not only limited to soldiers, military personnel and merchant seaman on duty like in Malaysia. Anyone who is facing death can make a nuncupative will. This is slightly different between the position in USA and in Malaysia.
Deathbed wills refer to wills created and executed by the testators who is facing death. This will is legally binding as this will is prepared in advance. Death-bed will is almost similar to nuncupative will that is used in USA. But in Malaysia, there is no any provision which covers this situation. In Malaysia, it is only allowed military personnel or merchant seamen on duty to executed a privilege will which is similar to nuncupative and death-bed will.
Certain states in US is using the term ‘death-bed will’ for person who made a will when a person is facing death at the moment he or she made the will. Death-bed will may be considered as a valid will but mistakes are easily goes wrong with a carelessly drafted will. This is because in such critical situation, the testator may not consider strategies aimed in case to minimize federal estate tax. In this case, this will cause an overabundance of estate tax will may not be paid at such moment.
Death-bed will is also been drawn without the formal proper legal requirements. Since the testator is facing death, he or she do not have the time to follow such legal requirements. They might not have enough time to search for beneficiaries or even witnesses to sign for his or her will. Even so, a death-bed will may avoid probate because it is considered a valid will. Hence, for a person who has made a death-bed will before he or she died, after his or her death, they are not said to die intestate since they have made a valid will.
There are some cases which happened related to death-bed will. The Court of Appeal decided a case involving a death-bed will and the concept of ‘guided hand’ signature. This involves a seriously ill gentleman who known as the testator wished to make his will on his death bed. The testator’s niece who is a legal secretary prepared a will for him to sign and then witnessed by two nurses. The issue in this case is whether the will is a valid will or not. This is because the testator’s nephew argued that the signature is not signed by the testator but by the testator’s sister. Hence, the will is an invalid will. The Court of Appeal held that there is lack of evidence which show the intention of testator who asked his sister to sign on his behalf. Hence the death-bed will is invalid. My opinion from this case is that, in case to have a valid death-bed will, there must be strong evidence to show that the testator who is the dying person has the intention to make the will in order to prevent fraud. However, this is quite unfair for the deceased. This is because if the deceased really have the intention to make the death-bed will, but because of the lacking of evidence, hence the will is declared void. This is really unfair and sad for the deceased. [18]
There are also some problems which arise due to death-bed will. The validity of death-bed will is being argued. This is because the issue arises whether the person had mental capacity to make the will or not. The testator is making his or her will in the weakest health condition. Such will is argued that maybe elements of fraud consists in the making of death-bed will. Hence, this cause some confusion in certain state in US which are practicing the death-bed will.
Then I will analyse the will in state of Tennessee. The type of last will and testament that is practicing in Tennessee for dying person is known as Nuncupative Wills. This will is made by person who is dying soon. The Will will be valid if the testator is actually died from the illness. However, in Tennessee, the nuncupative will has some exceptions. A nuncupative will is in oral rather than written. Nuncupative will can only be made if the testator is proved that he or she is in imminent danger of death. [19] In the process of making this kind of will, there must be two disinterested witnesses who stand to receive nothing from the will. This is two prevent fraud. If the witnesses are the potential beneficiaries, they might influence the dying person to transfer everything to them where this is fraud and unfair to other potential beneficiaries. The oral will must be written down within 30 days by the witnesses and file it with the probate court within six months in order to make the will to be valid.
In Texas, there is a Texas Probate Code. Certain section in this code mentioned about the proof of nuncupative wills. This is very important to ensure that the nuncupative will made by the dying person is a valid will. This is mentioned under Section 86 of Texas Probate Code. [20] While Section 65 of the Texas Probate Code mentioned about the requisites of a nuncupative will. It mentioned that no nuncupative will shall be established unless it is mace at the time of last sickness of the deceased at anywhere where he or she is resided for ten days or more. [21] There is also s 64 of Texas Probate Code which stated the capacity for a person to make a nuncupative will. This mentioned that deceased can distribute their personal property under certain condition and limitations as prescribed under this code.
There is also a pre-1998 Probate Code of the Georgia Code in Georgia. According to Section 53-2-47 of the Georgia code, [22] it mentioned that a nuncupative will is an oral will. While Section 53-2-48 of the Pre-1998 Probate Code, [23] it mentioned about the requirement for a nuncupative will. Nucupative will is valid if the will is proved by oaths of presence of at least two witnesses. Besides that, the will is made at the last sickness of the testator. Lastly, the testator at the time he or she made the will, he or she have to tell the witnesses that he or she is making a will.
Not only this, Section 53-2-50 of the Pre-1998 Probate Code [24] is also important as it mentioned types of properties should be included in the will. It stated that all properties whether real or personal can be included in the will as long as the will is properly made and proved.
In conclusion, we can see that every states in Malaysia is using the same will which is the privilege will. While in USA, different states used different types of will whether are death-bed will or the nuncupative will. In Malaysia, the privilege will is only limited to military personnel or the merchant seaman on duty. While, in USA, such death bed will or nuncupative will can be used by everyone as long as the person is facing death or know he or she is dying soon. However, whether in Malaysia or in USA, it is very important for the court to identify all the evidences which show that the testator has intention to make the will but not because of influences by others especially the potential beneficiaries. Without strong evidences, the will made will be declared as void by the court. These are the differences between Malaysia privilege will and the USA nuncupative will or death-bed will.
Opinion and Recommendation
Privileged wills are last wills and testaments that are made under circumstances where it is impossible to comply with the usual legal requirements of an ordinary will. Historically, this type of will has been considered legal when made by anyone who is currently engaged in military service, or is at sea. Nations vary on the exact circumstances that must exist in order for a privileged will to be considered a legally binding document.
One of the time-honoured situations in which a privileged will is considered legal is when the individual is actively engaged in a military situation, such as a war. Should the individual be serving on a war front, or in a care facility located near a field of battle, he or she is highly unlikely to have easy access to legal counsel, and may not be in a position to secure witnesses to the will. Depending on the laws that apply in the nation where the individual is listed as a citizen, the handwritten will may be considered perfectly legal, and be exempt from any other requirements pertaining to wills that are currently in effect in that country.
In some countries, there are restrictions on the legality of a privileged will, even if the writer is under military service or at sea. For example, some countries require that military personnel be actively engaged in a war effort, and thus have limited access to legal counsel. In like manner, sailors who are not currently at sea cannot draft a privileged will while on land, since there is a good chance he or she does have access to legal counsel and can meet the requirements associated with making a will with relative ease. While some nations recognize a verbal expression of last wishes to constitute a privileged will, others require that the will be presented as a document that at least carries the signature of the individual who is making the will.
In order to know the weakness and strength of privilege wills in Malaysia our group have choose United States of America to compare with our Malaysian way of making privilege will, In Malaysia, Section 26(1) Wills Act 1959 stated that only soldier which involved in actual military service is allow to make a privileged will. [25] However, this act is ambiguous on what amount to actual military service. After all when soldiers are in the process of facing war and in the state of war, the doctrine of privileged will is uphold. In addition to that, under Section 26(1) of the Wills Act provides that a mariner or seamen at sea are allow to make privileged will. So individual who are at sea which include seaman, mariner or member of a naval force of Malaysia are able to create a privileged will.
In Malaysia nuncupative Will is an Oral Will. It may be dictated by the testator his or her illness before a specific number of witnesses and later reduced to writing. It represents a limited exception to the general rule that a Will must be in writing. A Holographic Will is a will entirely written and signed in the handwriting of the testator. It is validated without witnesses because the fact that the Will is entirely in the testator’s writing. The risk of fraud that the formalities are designed to prevent is reduced.
In USA there is no single uniform law or provision which govern the making of privilege or nuncupative will. In USA different state use different law or provision on making of wills. Under Chapter 31 of the North Carolina General Statutes Wills in North Carolina can also be “nuncupative,” or oral. [26] A valid nuncupative will must be made on the testator’s deathbed and witnessed by at least two individuals whom the testator specifically requests bear witness to his last wishes. In Texas the law limits the use of nuncupative wills to those who are dying on their deathbeds or at war. In Texas, a nuncupative will is an exception to the written requirement only in limited circumstances.
Texas law allow to create a nuncupative or oral will in limited situations. This can be done if the testator terminally ill and at home. If the testator is not at home, he may be able to create an oral will if he is on your deathbed. he can orally devise property to others with only one witness if the total value of his bequests does not exceed $30. If the testator devises more than $30 in personal property, he must make your oral will in the presence of at least three credible witnesses. [27]
Holographic wills and nuncupative wills are invalid in Florida. [28] A holographic will is a will entirely handwritten and signed by the testator. In a nuncupative will, testators orally declare their direction for distribution of their assets. They also say that the declaration is their will. Nothing can be done in Florida to make a nuncupative will effective. However, a holographic will is not considered a holographic will if it meets the witnessing requirements described earlier. For the non-Floridian, or the non-Floridian who moves to Florida, the statute has a savings provision. Any will executed by a non-resident of Florida other than a holographic or nuncupative will is valid as a will in Florida if it was valid under the laws of the state or country where it was executed. And there is a special provision for people serving in the U.S. armed forces. If a will meets requirements under federal law for a military testamentary instrument, it is valid and effective in Florida [29] . It has become increasingly popular to use a living trust as an estate-planning vehicle instead of a will.
A living trust must be executed with the formalities required for a will if it is to be effective for disposition of assets at death of the person establishing trust. Codicils to wills and amendments to trusts also must be executed with the formalities required for a will. A properly executed will may be admitted to probate. It must be accompanied by an oath of one of the attesting witnesses taken before any circuit judge, commissioner appointed by the court, or clerk. If none of the attesting witnesses can be found or they are incompetent, the will may be admitted to probate upon the oath of the personal representative even if the personal representative is a beneficiary or upon the oath of any person having no interest in the estate.
It literally means that legal persons and testators from another state who shift to another, will face some problems in making wills because of the dissimilarities. The provisions of the law in different states in the USA may have variances, but in all the laws regarding deathbed will or nuncupative will as compared to the privileged wills which been exercised in our country under the Wills Act 1959 have several distinctions that are unique in their own ways, this maybe cause by some vital factors such as lifestyle, government policy, legislation, cultures, and etc.
After going through the content of this issue, we are able to answer the question of this assignment. As what we have written down the point in the content enable us to conclude that both countries Malaysia and United States of America have their own ways and rules in making privileged wills, even though the rules and formalities are diffrents from one and another, the intention of privileged will are uploaded, which is give the right to a person to choose his own manner to distribute his estate after his death. In Malaysia the rules and regulation on making a privileged will is similar throw out the country because federal rule govern making of wills in Malaysia but in USA this is not applicable because of their state rules govern the regulation of making of privileged will. Malaysian law on making of privileged wills is more accurate and more reliable, and also uniform to use, as well make the privileged testators work easier.
Conclusion
In this assignment, we have discussed on the privilege will in Malaysia and also in USA. As we know that, privilege will in USA is known as death-bed will or nuncupative will. There is several distinction between the will in USA and also in Malaysia. We have discussed in further in this assignment. Now I will summarise what are the differences between privilege will in Malaysia and nuncupative will and death bed will in USA.
Now I will first talk about who can make a privilege will in Malaysia. In Malaysia, it is limited to only military personnel or the merchant seaman on duty. This means that normal people cant make privilege will. They do not have the privilege to do so where military personnel has such privilege. While in USA, such will can be made by everyone. However, there is a condition for that. The condition is that, the person who make death-bed will or nuncupative will must be someone who are facing death or know that they are going to death. If not, the will will be invalid. If the testator is cured from his or her illness, the nuncupative will or death-bed will will automatically become invalid.
Another differences is in that in USA, the oral will by the testator have to be reduced into writing within 30 days in certain states in USA. If the oral will is not reduced into writing within 30 days, the will will automatically become invalid. While in Malaysia, there is no any provisions that mentioned the above situation. In Malaysia, oral will will also be accepted. It is not necessary for the testator to reduced his will into writing or in any legal documents. However, there must be strong evidence which show that the testator has intention to make the privilege will.
Besides that, in Malaysia, testator can include everything into their privilege will. Such as personal property or real properties. However, in USA, in order for them to make a death-bed will or the nuncupative will, they can only include personal properties into their will. Real property cannot be included into the will.
However, there are certain similarities between the will in USA and Malaysia. There must be strong evidence to show that the testator has intention while making the will. If the will is being challenged by anyone, without strong evidences to prove that the will is a valid one. The will will automatically become invalid. This is quite important in order to prevent fraud to happen.
Hence, from my opinion, I think that the law in USA is better than the law in Malaysia. I think that everyone should have the right to make a will but not only limited to military personnel or the seaman on duty. This is unfair for others who are facing death but is incapable to follow the formalities on making a will. Hence, this will cause them to die intestacy.