Partial Intestacy - The Importance of Residuary Clause

When one makes a Will, one does not intend to “die without leaving a Will” (intestate). However, at times the wordings of a Will may cause disputes among the beneficiaries as the intention of the deceased testator may not be expressed as clearly as it could have been. Worse still, there is no residuary clause in the Will.

• What happen if the intention of the deceased testator is not expressed clearly in a Will? We say that the deceased testator dies PARTIALLY INTESTATE.
  

• What is partial intestacy? A partial intestacy happens when the deceased testator has left a Will but the Will does not fully deal with the whole of his estate. For example, the deceased testator may have accidentally omitted to list a certain assets that he owns in the Will or he may have acquired some properties after the writing of his Will that are not covered under the Will.
  

• What happen if a Will does not provide for the distribution of a particular property? We call that particular property as the RESIDUARY PROPERTY. The residuary property being property not listed in the Will fell into partial intestacy and will be distributed in accordance with the Distribution Act 1958.
  

• How to avoid partial intestacy? It is better to always include a residuary clause in a Will. The absence of a residuary clause will result in a partial intestacy over the deceased’s estate.
  

• What is a residuary clause? A RESIDUARY CLAUSE is a provision in a Will that disposes asset / property that is often overlooked by the deceased testator.It is also a provision that devise and bequeath all the deceased testator’s movable and immovable properties not specifically mentioned in the Will to the beneficiaries that the decease testator wishes to bequeath upon. For example, the deceased testator may bequeath such properties to the beneficiaries listed in his will in equal shares.
  

• What is an exclusion clause? An EXCLUSION CLAUSE is a provision when for whatever reason, the deceased testator wishes and requests to exclude anyone from his estate in making a Will. The deceased testator also can exclude certain beneficiaries from his residuary property. This is to ensure a specific person or persons do not benefit from the proceeds of the deceased testator’s estate when the deceased testator passed away.
  

• What is the effect of having exclusion clause in a Will in the absence of residuary clause? When the intention to exclude certain beneficiaries is expressed in a Will, the absence of a residuary clause will not entitle those excluded beneficiaries to take under the Will. As such, the bequest will be shared among those who the deceased testator intend to benefit. In the event when the wordings in a Will are not clear and ambiguous, the Court in Malaysia would apply principles that could assist in avoiding a case of partial intestacy. The Court in Malaysia will give effect as far as possible to the deceased’s intention as declared in the Will and will not alter or add to the words of the Will unless it is perfectly clear that the Will does not express the intention of the testator.
  

(Kalwant Singh Ujagar Singh & Anor v. Jaswant Kaur Ujagar Singh & Ors [2022] 4 MLRA193)

This article is only intended to provide general information to our Firm's clients and it should not be regarded as professional legal advice. Should you require any professional legal advice, you are advised to consult us.