What is a Will?
A Will is a legal document that allows you to specify the Executor you appoint to manage your affairs and distribute your assets in accordance with your instruction, how and to whom your assets are passed upon your death; and who will assume guardianship of your minor children.
In Brunei, the Will is governed by the Wills Act (Cap. 193).
Why do I need a Will?
Not making a Will eventually leads to prolonged period of heartache and grief for your beloved ones. Your Will spells out two very important things:
• Who should have your money, property and possessions when you have passed away.
• Who (Executor) will be authorized to manage your estate/assets in accordance to the instructions in your Will.
A Will is important for everyone and can be useful regardless of estate size. Having a Will ensures that your wishes are known, providing your loved ones with peace of mind and reduce the cost and time of intestate probate or administration.
What happens if I die without a Will in Brunei?
If you do not have a Will, you are said to have passed away Intestate and your assets will be distributed in accordance to section 58 of the Probate and Administration Act, Cap. 11 (the “Act”).
There are many cases of family dispute over the distribution of the assets. This might also lead to situations such as where a spouse whom you are separated from but not legally divorced, remote relatives or a relative whom you dislike may end up having full or partial control over your estate, or may acquire benefits therefrom contrary to your desire. Therefore, it is important to leave a Will to minimize the potential for disputes and to exercise the discretion allowed to persons under the Act in determining matters in regards to the administration of their estate upon their passing.
In the event that a person passes away intestate, the following will apply in regards to how the property, assets and effects covered by the grant of probate or letters of administration shall be distributed; under the Probate and Administration Act, Cap. 11:
The residue of the deceased’s estate shall be distributed:-
(1) where the deceased was a Muslim domiciled in Brunei, in accordance with Muslim law as practiced in Brunei;
(2) where the deceased was not a Muslim but was an Asian domiciled in Brunei and the race to which he belonged has its own recognised and clearly-defined customs relating to the administration and distribution of the estates of deceased persons, in accordance with the terms of the will or, if no will has been produced, according to those customs;
(3) in all other cases where the deceased was domiciled in Brunei, in accordance with the terms of the will or, if no will has been proved according to the law for the time being in force in England relating to the administration of the estates of deceased person; and
(4) in all cases where the deceased was not domiciled in Brunei, in accordance with the law of the country of his domicile.
Is a Memori Will legally valid?
Yes. Once you print your Will, read it thoroughly and ensure it reflects your wishes and that you understand the content of the Will. Sign your Will in front of two witnesses, with initial and date at the foot of each page. The witnesses must also sign the Will and initial at the foot each page, in the presence of the you and in the presence of each other.
Can I use Memori Will if I live outside of Brunei Darussalam?
Memori Will currently create Wills that are valid for the disposition of property located in Brunei Darussalam. Therefore, even if you live abroad, you can still use Memori Will to direct the distribution of any assets you have that are located in Brunei Darussalam. However, any property of yours that is located outside of Brunei Darussalam is required to be addressed in a separate Will that is valid for the country in which that property is located. You may consider consulting a lawyer here.
Who is the Testator?
The Testator is also known as the Will Creator, a person who makes the Will. A Testator must be over the age of 18 and be of sound mind.
Who is the Executor/Executrix?
The Executor (male) /Executrix (female) is the person appointed by Testator to carry out the wishes and administer the estate of the decreased as stated in his/her Will. An Executor must be at least 21 years old, not a bankrupt and is of sound mind.
You can appoint a professional Executor, spouse/friend/relative or Beneficiary under a Will. An ideal Executor should be someone who is honest, dependable and willing to go through the paperwork. Given the responsibilities, it is always a good idea to discuss with that person prior to the appointment as Executor.
Who is the Beneficiary?
A Beneficiary is a person or organization who benefits from the distribution of a Testator’s assets under the Testator’s Will. This might be in the form of money, property, possessions or anything that the Testator left behind.
Who makes a good witness to a Will?
Witnesses should observe that the Testator is of sound mind and is able to fully understand the contents of the Will and the effect of the Will. This is to ensure that the Will becomes official and legally binding. Witnesses do not have to read the entire Will but merely sign and initial at the foot of each page of the Will.
It is important to understand that your witnesses may need to testify your Will after your death, hence consider choosing someone who is going to outlive you. These are the minimum requirements when selecting your witnesses:
1) is of sound mind,
2) is above the age of 21 years old
3) is not the beneficiaries of the will, or spouses of beneficiaries.
4) maybe your Executor, just as long as he/she is not a Beneficiary of the Will.
Beneficiaries should not witness a Will. In the event of a Beneficiary or Beneficiary’s spouse witnessing the Will, that person may be disqualified from inheriting the share of the Will.
What if I need a more complicated Will?
For the drafting of more complicated Wills, please seek legal advice from a qualified lawyer. The lawyer will contact you and professional fees may differ based on the complexity of the legal advice required. You may find a list of trusted professionals that we work with here.
When should I update my Will?
You should review and update your Will every 5 years and after any major change in your life, for example:
• getting married (this automatically revokes a Will you made before)
• getting separated or divorced
• having a child
• moving house
• if the Executor named in the Will passed away
What is Probate?
It is the legal process of settling the estate of a deceased person. It is a Court Order authorizing the Executor(s) appointed by the deceased person under his/her Will to administer his/her estate according to the direction of the Will.
In the case where no Will is written, an administrator must be appointed in order to be recognized legally to deal with the deceased's estate.
For more information about Probate and Administration click here.
For more information about Probate Office click here.