Last Will and Testament (Sabah & Sarawak)

A Last Will and Testament in Malaysia records a testator's instructions for distributing property and appointing executors on death.

In Sabah, the governing legislation for non-Muslim Wills is the Wills Ordinance (Sabah Cap. 158), which is modelled closely on the English Wills Act 1837. In Sarawak, the corresponding legislation is the Wills Ordinance (Sarawak Cap. 158). Both ordinances share substantially similar formal requirements for the execution of a valid Will — reflecting their common origin in the English Wills Act 1837, which predates the Malaysian Wills Act 1959 for Peninsular Malaysia. The formal requirements under both ordinances are: the Will must be in writing; signed at the foot or end by the testator (or by some other person in the testator's presence and by their direction); the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and both witnesses must sign as attesting witnesses in the presence of the testator.

Probate jurisdiction in Sabah is vested in the High Court in Sabah and Sarawak (Kota Kinabalu Registry), and in Sarawak in the High Court in Sabah and Sarawak (Kuching Registry). These are separate registries from the High Court of Malaya in Kuala Lumpur, which handles Peninsular Malaysian estates. The administration of estates in Sabah and Sarawak is governed by the Probate and Administration Ordinance (Sabah Cap. 96) and the Probate and Administration Ordinance (Sarawak Cap. 97), which correspond to the Probate and Administration Act 1959 for Peninsular Malaysia. The distribution of intestate estates in Sabah and Sarawak is governed by the Distribution Ordinance (Sabah Cap. 67) and the Succession Ordinance (Sarawak Cap. 105) — the latter of which differs notably from the Distribution Act 1958 applicable in Peninsular Malaysia.

A further important distinction for Sabah is the customary (adat) inheritance rights of the indigenous Kadazan-Dusun, Murut, Bajau, and other Sabah native communities under the Sabah Native Courts Enactment 1992 and the Sabah Land Ordinance (Cap. 68). Native customary land (NCL) registered as 'Native Title' under the Sabah Land Ordinance may be subject to special inheritance rules under adat that interact with the formal Will. For Sarawak, the Native Customary Rights (NCR) land under the Sarawak Land Code (Cap. 81) involves similar considerations for Iban, Bidayuh, Orang Ulu, and other Sarawak native communities. Testators with native customary land should take specific legal advice from an advocate and solicitor admitted to the High Court in Sabah and Sarawak on the interaction of their Will with customary inheritance rights.

Labuan, a Federal Territory situated off the coast of Sabah, is subject to the Wills Act 1959 (Act 346) — not the Sabah Wills Ordinance — as it is a Federal Territory. Residents of Labuan should use the `my-will-non-muslim` template.

Amanah Raya Berhad (ARB) — the public trustee under the Public Trust Corporation Act 1995 (Act 532) — provides estate administration services in both Sabah and Sarawak through its regional offices in Kota Kinabalu and Kuching, and may be appointed as executor for estates in East Malaysia.

A Last Will and Testament under the Sabah or Sarawak Wills Ordinance is needed in several circumstances specific to non-Muslim residents of East Malaysia.

A Will under the applicable East Malaysian ordinance is needed when a non-Muslim resident of Sabah or Sarawak wishes to control the distribution of their estate — including immovable property registered under the Sabah Land Ordinance (Cap. 68) or the Sarawak Land Code (Cap. 81) — rather than relying on the intestacy rules of the Distribution Ordinance (Sabah Cap. 67) or Succession Ordinance (Sarawak Cap. 105), which differ in certain respects from the Distribution Act 1958 applicable in Peninsular Malaysia.

A Will is required when the testator owns native customary rights (NCR) land in Sarawak or native title land in Sabah, and wishes to specify who among their family members (who must qualify as 'natives' under the applicable state definition) should inherit the NCR or native title land. Without a Will, NCR/native title land passes under customary adat inheritance practices alongside the formal statutory intestacy rules — which may produce an outcome the testator does not intend.

A Will is needed when the testator has assets in both Peninsular Malaysia and East Malaysia — for example, a Sarawakian who works in Kuala Lumpur but retains property in Kuching. In this situation, the testator should obtain legal advice on whether a single Will governed by the applicable East Malaysian ordinance is sufficient, or whether separate Wills (one for Peninsular assets, one for East Malaysian assets) are more appropriate.

A Will is required when the testator wishes to appoint a testamentary guardian for minor children under the Guardianship of Infants Ordinance applicable in Sabah or Sarawak, and to establish a trust for the children's inherited assets until they reach the age of majority.

A Will is needed when a testator of mixed heritage — for example, a Sabah native who has converted out of Islam — wishes to confirm their testamentary capacity and the governing law for their estate distribution, given the interaction between native status, religious conversion, and succession law in East Malaysia.

A valid Last Will and Testament under the Wills Ordinance (Sabah Cap. 158) or the Wills Ordinance (Sarawak Cap. 158) must contain the following essential elements.

Jurisdiction Declaration: The Will should state clearly whether it is made under the Wills Ordinance (Sabah Cap. 158) or the Wills Ordinance (Sarawak Cap. 158), identifying the testator's state of residence and the High Court registry (Kota Kinabalu or Kuching) with jurisdiction over the estate.

Testator Identification and Capacity: Full name, NRIC, residential address, occupation, and a declaration of sound mind and testamentary capacity. The same Banks v Goodfellow [1870] test for testamentary capacity applies in East Malaysia — the testator must understand the nature of the Will, their property, and the claims of potential beneficiaries.

Revocation Clause: A clear revocation of all prior Wills and testamentary dispositions. This is particularly important in East Malaysia where older Wills may have been made under the pre-Ordinance customary framework or under the English Wills Act 1837.

Appointment of Executor: Appointment of one or more executors who will apply for a Grant of Probate from the High Court in Sabah and Sarawak (Kota Kinabalu or Kuching Registry) under the applicable Probate and Administration Ordinance. Amanah Raya Berhad may be appointed as executor for a professional fee.

Native Land Provisions: For testators with native customary rights (NCR) land in Sarawak (under the Sarawak Land Code, Cap. 81) or native title land in Sabah (under the Sabah Land Ordinance, Cap. 68), the Will should include specific provisions identifying the NCR/native title land, the native beneficiaries to whom it is bequeathed, and an acknowledgment that the bequest is subject to the applicable native land restrictions. NCR land in Sarawak may only be inherited by 'natives' as defined in the Sarawak Interpretation Ordinance, and any bequest of NCR land to a non-native is void.

Residuary Estate and Trust: A residuary clause distributing the balance of the estate after specific bequests and debts, including a trust provision for minor beneficiaries (specifying the age at which minors receive their inheritance and the trustee's powers during the trust period).

Formal Execution: Signed at the foot or end by the testator in the simultaneous presence of two adult witnesses, both of whom sign as attesting witnesses in the testator's presence. Neither witness nor their spouse should be a beneficiary.

Additional compliance elements for a Last Will and Testament (Sabah & Sarawak) used in Malaysia include: Under Malaysian law, the Contracts Act 1950 (Act 136) governs contractual obligations. The Companies Act 2016 (Act 777) regulates corporate entities through the Companies Commission of Malaysia (SSM). The Employment Act 1955 (Act 265) and the Department of Labour govern employment matters. The Personal Data Protection Act 2010 (Act 709) and the Personal Data Protection Department protect personal data. The Inland Revenue Board of Malaysia (LHDN) administers tax obligations. The Industrial Court adjudicates employment disputes under the Industrial Relations Act 1967 (Act 177). Forms-legal.com provides this template as a starting point for Malaysia-compliant documentation.