Sam Chan
LLB, CLP
Assistant General Manager Franchise Development & Training
Rockwills Corporation Sdn Bhd
Estate Planning with a holistic approach had started as a trend in Malaysia since the mid-90s. Holistic estate planning is more than writing a Will where planning involves taking into consideration a person’s liabilities, his family’s financial sustainability, mitigation of financial risk upon his death, and many more aspects. Estate planning has to be customized depending on what concerns or assets a person owns. As the society or economy develops, so does the approach to estate planning.
In Malaysia, the unprecedented challenges brought by the current Covid-19 pandemic have caused a surge in the demand for estate planning services. The fear of getting infected has fuelled the urgency on a public scale where Malaysians need to sort out their affairs and to prepare for the worst that could happen to them. The legal requirements of signing the Will or Trust documents further complicate the situation due to the strict movement restriction and social distancing procedures imposed by the Government.
The Covid-19 pandemic has also caused a lot of Malaysians to be stranded in overseas countries. Most of them are working overseas to make a living. They would save or invest their earnings back in Malaysia for their family members. There are also foreigners who work and own assets in Malaysia.
They would be concerned with what they could do to protect their families during the international travel restrictions. Can the Estate Planner give them advice and take their instructions remotely? Can the Will be prepared in Malaysia while they are in another country? Can the Will be signed outside of Malaysia? Can a Will or Trust be signed electronically? Can a non-Malaysian citizen be a witness to the Will?
In Malaysia, a person writing a Will must comply with the formalities stated in Section 5 of the Wills Act 1959 for the Will to be valid and effective. Among other requirements stated in the Act, the Will must be attested by at least two witnesses in the presence of the testator and each other.
All these years, Estate Planners, like any other professionals, would meet the testator in person to discuss their estate plan. A meeting will be arranged to find out the testator’s concerns before proposing appropriate solutions that meet the testator’s needs for the preparation of the Will or Trust documents. The Estate Planner would bring the finalised Will or Trust for the client to sign in the presence of the witnesses. When the nation declares an emergency lockdown, the Estate Planners have to adapt quickly to the situation.
Thanks to the advancement of technologies and the internet, estate planning services are still accessible during the restrictions imposed as a result of the Covid-19 pandemic. In line with the social distancing SOP, the Estate Planner would be using online meeting platforms to meet and discuss with the testator regarding their Will and Trust set up. As the Will and Trust documents must still be in hard copies, the documents would be couriered to the Testator’s residence. The testator will then sign the Will in the presence of the witnesses such as their neighbours, to comply with the legal requirements. In the meantime, the Estate Planner can use video calls to guide the testator and the witnesses for the attestation.
Digital Assets
Even before the pandemic, we are already in the era of convenience where banking and investments, taxi and food deliveries are just a few swipes and taps on our smart devices. Digital lifestyles are inevitable. Hence, there are growing concerns from the public as to whether it is possible to include their digital assets in their Wills especially those who have invested in cryptocurrencies that are significant in value.
Digital assets are assets that are in a digital form or other intangible forms by electronic, magnetic, or optical means or by some other similar means giving the owner an ownership claim or a right of use or interest in these. Examples would be cryptocurrencies, social media accounts, e-wallet accounts, and cloud storage accounts. These are assets that can be given to loved ones. Some digital assets such as social media accounts and cloud storage accounts require the consent of the platform operator before the executor of the estate, who does not have account details, can gain access to it. Digital assets, unlike the traditional assets which can be kept in a safe deposit box or drawer, may not give any ownership title. It largely depends on the terms set by the platform that is the digital asset enabler.
One of the common problems with digital assets planning is that family members have no knowledge of the existence of the digital assets. The digital assets are likely to be irrecoverable if no one is aware that the deceased owned these assets. However, if the digital assets are accounted for in the Will, it can save the family a lot of time and trouble to gain access to those assets and begin distribution.
Thus, a digital asset owner should state clearly in the Will the specific digital assets to be given if he/ she would like to give his/ her loved ones the contents of his/ her digital accounts, regardless of the financial value. Itemisation of the digital accounts in the Will is required to facilitate recovery of these digital assets as they are dependent on user details and passwords for the executor to recover it. Next is to put in place security to restrict access to unauthorised persons.
In summary, the demand for estate planning has increased significantly due to the COVID-19 pandemic and estate planning is constantly evolving to adapt to the ever- changing environment. There is no one-size-fits-all solution for estate planning. One can easily write a Will but will need a professional to formulate a better estate plan. Ultimately, it is important to take advice from an experienced and well-informed Professional Estate Planner who can be innovative to provide solutions. Given today’s uncertainties, it is never too early to start planning your estate.
