WILL EXECUTION DURING COVID-19: LEGAL CHALLENGES IN MALAYSIA

Abstract

The Coronavirus disease (COVID-19) pandemic has posed several challenges to almost every aspect of our lives including the Wills writing industry. Due to this unprecedented phenomenon, over the past few months, processes, laws, and timelines have all been pushed to their limits. There are considerable practical and legal challenges to consider when making a will while social distancing, isolation, or quarantine measures are in place. This article aims to discuss the formalities that need to be complied with in executing a will and challenges in the Malaysian legal context in an era in which social distancing is the new normal. As Malaysian Law operated on parallel legal jurisdiction, this article limits the scope of discussion to the civil legal position impose on the non-Muslim in Malaysia by referring to Wills Act 1959 only. For this purpose, the discussion adopts the doctrinal analysis by examining the existing primary and secondary materials including statutory provisions, case law, and other legal and non-legal literature related to the will execution under civil law applicable to non-Muslim. This article concludes that restrictions on human interaction are challenging for assessing testamentary capacity and witnessing requirements as both of which are required to ensure the validity of Wills. For the time being, it appears that Malaysian law still insists to follow the strict conventional way of wills execution. The legislature should relax some strict requirement in the Wills Act 1959 during the COVID-19 outbreak or similarly exigent circumstances with several safeguards to ensure the validity of the Wills. A technological tool such as electronic signature, remote execution and digital will also good to be considered as an alternative solution in making a valid Will during pandemics.