The application of privileged wills in Malaysia and other selected countries : a comparative analysis

Abstract

A right to make a privileged will is granted to soldiers and airmen in actual military service and sailors (which includes mariners, seamen and members of the naval forces of Malaysia) while being at sea. They are given the right to make a will in the best way they can without observing the formalities because of the imminent dangers, diseases, disasters, and sudden deaths, which may befall them during actual military service and while being at sea. In Malaysia, the provisions of the law on privileged wills necessitate a legal reform. The analysis of the qualitative data reveals that the zero incidence of making privileged wills among Muslim and non-Muslim soldiers and airmen in actual military service and mariners and seamen (including members of the Naval Forces of Malaysia) being at sea is due to the absence of legal and procedural framework about the making of privileged wills in the respective departments. As such, the law relatings to privileged wills in Malaysia is in need of reconsideration under modern conditions. The study examines provisions of law governing privileged wills in the United Kingdom, Indonesia and India, which could be followed in Malaysia. The significance of this research lies in the identification of the possibility and the relevancy to extend the provision of law on privileged wills to Muslims soldiers and airmen in actual military service and Muslims mariners and seamen (including members of the naval forces of Malaysia) being at sea. There are similarities between the making of a privileged will under the civil law and the making of a will under the Islamic law. As such, there is a need for the extension of the provision of law on the privileged will to them. The inadequacy of law relating to the legal and procedural framework for privileged wills may lead to the possibility of fraud in the application for probate, application for a letter of administration with privileged will annexed, and a letter of administration with nuncupative privileged wills. Therefore, a new legal framework on privileged wills is important in Malaysia.