Wednesday 17 Apr 2024
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This article first appeared in The Edge Malaysia Weekly on September 10, 2018 - September 16, 2018

The act of writing a will is simple enough, but there is a potential minefield to navigate if the testator is not exceedingly cautious about how he stores the document.

One obvious risk is misplacing the will or forgetting where it is stored. If the document is not found, the testator would have effectively died without a will.

Moreover, there is a risk of third parties stumbling on the document by mistake while the testator is still alive. This could put unnecessary pressure on the testator as a result of dissatisfaction on the part of the beneficiaries.

MWD Wills Depository Sdn Bhd director Su Tiang Joo says this could happen if the testator does not intend to bequeath equal shares to his beneficiaries. “It may be that one person receives more simply because you perceive that person as being more in need of the assets.”

That is why there is a need for a dedicated, secure and privately owned wills registry and depository service in Malaysia, he contends. Wills registry and custodian services have generally been unavailable to the wider public because they tend to complement the more complex and expensive will writing and executorship services — the kind typically provided by will-writing and trust companies.

Su launched WillKey, a central wills registry and depository service, in early August. Testators can deposit their original will or a copy of it. Alternatively, they can register with WillKey to provide information on the location of their will.

Su tells Personal Wealth that WillKey’s vault in the Klang Valley is built to store millions of documents and is equipped with robust security and fire suppression features. All these features are meant to assure clients that their will is secure and readily available for extraction, amendment or execution.

“Various segments of society are wealthy enough to have their lawyers or trust companies store their wills for them. These segments may not use our services. But I do think there is a large number of people who may not wish to spend the kind of money that these larger players charge,” says Su.

“Furthermore, these clients may not need these larger players to execute or administer their estate because they may not have enough assets to justify appointing an external administrator. My target clientele is the general population — people who have assets, but perhaps lack the kind of security that they need to safely store a document as important as their last will and testament.”

While some may choose to store this document with a trust company or law firm that provides a range of will-related services, it could present a potential conflict of interest. “If a testator tells a lawyer to prepare his will and serve as the executor, quite often, the executor would want to charge a professional fee for this service. The conflict here may be twofold — first, the commission that the will writer (in this case, the lawyer) earns is often higher if he is also serves as the executor,” says Su, who is a practising lawyer and founding partner of law firm Cheah, Teh and Su.

"Second, when there is a commission involved in the administration of the estate [which is pegged at a certain percentage of the value of the estate], there may be instances where delay in the administration - resulting in an increase in the value of the estate - causes the commission to become an area for dispute."

These conflicts could prompt the beneficiaries to take the executor to court because the latter no longer commands their confidence, says Su. Beneficiaries may seek the removal of the executor on grounds that undue influence was brought to bear upon the testator during the writing of the will or there was undue delay in the administration of the estate.

“Where WillKey is concerned, however, we do not involve ourselves in the execution at all. We are simply a repository for your will. You store it with us, you (or an approved party) retrieve the will and you make plans to have the will executed,” says Su.

According to him, it is not uncommon for trust companies or professional will-writing service providers to draft a client’s will on the cheap and then provide depository services. The drawback here is that the client is often subjected to heavy retrieval charges, sometimes running into thousands of ringgit.

“Our rates are exactly as advertised, with no hidden costs or fees. We offer a monthly, yearly or a one-time lifetime payment package. These are the only rates the clients have to pay. There is no additional fee to have the will extracted. Further, a client will be able to search, retrieve or deposit the will as many times as they like,” says Su.

There is a one-time registration fee of RM133.33 while will storage is available for as low as RM3.33 a month.

WillKey, however, is not responsible for the validity of the will, says Su. “We are not concerned with the validity of the will. We leave that to the professional will writers who draft these documents.”

A key risk in all this is what happens to WillKey’s clients in the event that the company goes under. “We are simply a custodian. The wills do not belong to us, so these properties cannot be seized by creditors. We also have plans in place to notify clients to retrieve their wills in the event that we go into liquidation,” says Su.

He adds that WillKey does not have any financing or loan obligations. So while its high-security vault is a significant upfront cost, the company is currently not exposed to creditor risks.

Su plans to reach out to large employers to leverage their large headcounts. “Wills registry and custodian services is a volume game after all. These broader initiatives are in the pipeline. We are happy to offer our services and are able to partner any institution to provide our services,” he says.

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