No residuary clause in the Will – what would happen to the estate?

It is common and necessary to have a residuary clause in a Will which usually states “I hereby leave my residue of my estate, both movable and immovable of whatsoever description and wheresoever situated absolutely for their use and benefit and enjoyment to ABC”.

This is important so the assets of the estate that are specifically given to beneficiary.

Without a residuary clause in the Will the estate would be distributed according to the provisions of the Distribution Act 1958.

We refer to the case of LYNETTE MEI LI PONNIAH v. LIM SWEE GIN decided by Yang Arif DARRYL GOON in 2018.

Facts:-

Deceased died on 28.01.2015.

On 03.04.2014 the Deceased drawn up a Will. There was no residuary clause in the Will.

Clause 2 of the Deceased’s Will states:-

“2. I bequeath all that property known as No. 11A, Lorong Mempoyan, Damansara Heights, 50490 Kuala Lumpur, held under title deed Geran 34369 Lot 9099 in the Mukim and District of Kuala Lumpur and State of Willayah Persekutuan absolutely.”

Strangely it is NOT stated in the Will to whom the Damansara Property was devised.

Plaintiff is the biological daughter of the Deceased. However, she was not named as a beneficiary to the Deceased’s Will.

She is now claiming, inter alia, that she has a share in the Damansara Heights property.

Defendant is the Executrix and Wife of the Deceased.

Issue

There was no residuary clause in the Will that would provide for the distribution of the Deceased’s residuary estate or the distribution of any asset that was not properly bequeathed or devised to any identifiable beneficiary.

Decision

The Court decided that Court does not have the power to insert the Defendant’s name into the Will as sought by the Defendant.

Court does have the power to rectify the Will.

Deceased’s Will stands in its present form.

Damansara Property defaults into the residuary estate of the Deceased and falls within the ambit of the Distribution Act 1958. This is because in the Will, it is not mentioned who is the beneficiary of the Deceased’s Damansara Property.

The Court therefore declared that the Plainiff, being the lawful daughter of the Deceased, is entitled as beneficiary to the residuary estate of the Deceased in accordance with the provisions of the Distribution Act 1958.

Note

In the event that there is any failure to draft or include such residuary clause, it will cause the remainder of the Decease’s property to pass by intestate succession. This is a result that may not be the original wishes of the Deceased.

In conclusion, residuary clause is an essential part of the Will to prevent uncertainties. It must be included in a Will to ensure that all the assets or properties that might have been overlooked or forgotten will be distributed according to the Deceased’s wishes.