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WILLS (CHAPTER 193)

LAWS OF BRUNEI

CHAPTER 193

WILLS

S 55/99

REVISED EDITION 2000

(30th December 2000)

LAWS OF BRUNEI

ARRANGEMENT OF SECTIONS

Section

1. Citation.

2. Interpretation and application.

3. Property disposable by will.

4. Will of minor invalid.

5. Mode of execution.

6. Execution of appointment by will.

7. Publication of will not necessary.

8. Incompetency of attesting witness.

9. Gifts to an attesting witness etc. void.

10. Creditor attesting a will, a witness.

11. Executor as witness.

12. Extent to which a will is revoked by marriage or divorce.

13. Altered circumstances.

14. Revocation of will.

15. Effect of obliteration etc.

16. Revival of revoked will.

17. Subsequent acts not to prevent operation of will.

18. Wills to speak from death.

19. Residuary devises or bequests.

20. Effect of general devise or bequest on power of appointment.

21. Devise or bequest without words of limitation.

22. Words importing want or failure of issue.

23. Trustee or executor.

24. Devise or bequest of property to trustee without limitation.

25. Devise or bequest to children or other issue.

26. Privileged wills of members of RBAF etc.

27. Wills executed abroad.

28. Wills by citizens.

29. Change of domicile.

_______________________

WILLS ACT

An Act to make provision for the law governing wills and for matters connected therewith

Commencement: 21st October 1999

Citation.

1. This Act may be cited as the Wills Act.

Interpretation and application.

2. (1) In this Act, unless the context otherwise requires—

“property” includes lands, leases, rents and hereditamentscorporeal, incorporeal or personal and any individual shares thereof andany estate, right or interest therein or in relation thereto, moneys, shares and other funds, securities for money, charges, debts, choses inaction, rights, credits, goods and all other property whatsoever whichdevolves upon the executor or administrator and any share or interesttherein and any contingent, executory or other future interest;

“will” means a declaration intended to have legal effect of theintention of a testator with respect to his property or other matterswhich he desires to be carried into effect after his death and includes atestament, a codicil and an appointment by will or by writing in the nature of awill in exercise of a power and also a disposition by will or testament of theguardianship, custody and tuition of any child.

(2) This Act shall not apply to the wills of persons professing theIslamic religion whose testamentary powers shall remain unaffected byanything contained in this Act.

(3) Notwithstanding the making of this Act, a will made before the day ofcommencement of this Act shall, if it would immediately before that day havebeen construed in accordance with such law, continue to be construed in accordance with the law relating to wills in force in Brunei Darussalamimmediately before that day.

(4) For the purposes of subsection (3), a will re-executed, republished orrevived by a cordial shall be deemed to have been made at the time when it wasso re-executed, re-published or revived.

Property disposable by will.

3. Subject to the provisions of this Act, every person of sound mindmay devise, bequeath or dispose of by his will, executed in the manner pursuantto this Act, all property which he owns or to which he is entitled either at lawor in equity at the time of his death notwithstanding that he may havebecome entitled to the property subsequently to the execution of the will.

Will of minor invalid.

4. No will made by any person under the age of majority shall bevalid.

Mode of execution.

5. (1) No will shall be valid unless it is in writing and executedin the manner pursuant to this Act.

(2) Every will shall be signed at the foot or end thereof by thetestator or by some other person in his presence and by his direction; suchsignature shall be made or acknowledged by the testator as the signature to hiswill in the presence of 2 or more witnesses present at the same time, and suchwitnesses shall subscribe the will in the presence of the testator, but no formof attestation shall be necessary.

(3) Notwithstanding subsection (2), every will shall, as far only asregards the position of the signature of the testator or of the person signingfor him as mentioned in subsection (2), be deemed to be valid under thissection if the signature is so placed at or after, or following, orunder, or beside, or opposite to the end of the will, that it is apparent on theface of the will that the testator intended to give effect, by his signature tothe writing signed, as his will; and no such will shall be affected by thecircumstance —

(a) that the signature does not follow or is not immediately afterthe foot or end of the will;

(b) that a blank space intervenes between the concluding word of thewill and the signature;

(c) that the signature is placed among the words of thetestimonium clause or of the clause of attestation, or follows or is afteror under the clause of attestation, either with or without a blank spaceintervening, or follows or is after, or under, or beside the names or one of thenames of the subscribing witnesses;

(d) that the signature is on a side or page or other portion of thepaper or papers containing the will where no clause or paragraph or disposingpart of the will shall be written above the signature; or

(e) that there appears to be sufficient space on or at the bottom ofthe preceding side or page or other portion of the same paper on which the willis written to contain the signature.

(4) The enumeration of the circumstances in subsection (3) shall notrestrict the generality of subsection (3), but no signature shall be operativeto give effect to any disposition or direction which is underneath or whichfollows it, nor shall it give effect to any disposition or direction insertedafter the signature has been made.

Execution of appointment by will.

6. (1) No appointment made by will in exercise of any power shall bevalid unless the will is executed in the manner pursuant to this Act.

(2) Every will executed in the manner pursuant to this Act shall, so far asrespects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding that it shall have beenexpressly required that a will made in exercise of such power should beexecuted with some additional or other form of execution or solemnity.

Publication of will not necessary.

7. Every will executed in the manner pursuant to this Act shall bevalid without any other publication thereof.

Incompetency of attesting witness.

8. If any person who attests the execution of a will shall at the timeof the execution thereof or at any time afterwards be incompetent to beadmitted as a witness to prove the execution thereof, such will shall not onthat account be invalid.

Gifts to an attesting witness etc. void.

9. If any person attests the execution of any will to whom or to whosewife or husband any beneficial devise, legacy, estate, interest, gift orappointment of or affecting any property, other than charges and directions forthe payment of any debt, is to be given or made, such devise, legacy,estate, interest, gift or appointment shall, so far only as concerns such personattesting the execution of such will, or the wife or husband of such person, orany person claiming under such person or wife or husband, be null and void, and the person so attesting shall be admitted as a witness to prove theexecution or to prove the validity or invalidity thereof, notwithstanding suchdevise, legacy, estate, interest, gift or appointment mentioned in suchwill.

Creditor attesting a will, a witness.

10. If any will charges any property with any debt and any creditoror the wife or husband of any creditor, whose debt is so charged, attests the execution of such will, the creditor, notwithstanding such charge, shallbe admitted as a witness to prove the execution of such will or to provethe validity or invalidity thereof.

Executor as witness.

11. No person shall, on account of his being an executor of awill, be incompetent to be admitted as a witness to prove the execution of suchwill or a witness to prove the validity or invalidity thereof.

Extent to which a will is revoked by marriage or divorce.

12. (1) Every will made by any person shall be revoked by hismarriage, except in the case of a will made in exercise of a power of appointment, when the property thereby appointed would not in default ofsuch appointment pass to his heir, executor or administrator or the personentitled in case of his intestacy.

(2) Notwithstanding subsection (1), a will expressed to be made incontemplation of a marriage shall not be revoked by the solemnisation of themarriage contemplated; and this subsection shall apply notwithstanding that themarriage contemplated may be the first, second or subsequent marriage of aperson lawfully practising polygamy.

(3) If, after a testator has made a will, a decree of a court dissolves orannuls his marriage —

(a) the will shall take effect as if any appointment of the formerspouse as an executor or as the executor and trustee of the will were omitted;and

(b) any devise or bequest to the former spouse shall lapse,except in so far as a contrary intention appears by the will.

Altered circumstances.

13. No will shall be revoked by any presumption of an intention on theground of an alteration in circumstances.

Revocation of will.

14. No will or any part thereof shall be revoked otherwise than as provided by this Act, or by another will executed in the manner pursuantto this Act, or by some writing declaring an intention to revoke the willand executed in the manner in which a will is to be executed pursuant to thisAct or by the burning, tearing or otherwise destroying the will, by the testatoror by some person in his presence and by his direction with the intentionof revoking the will.

Effect of obliteration etc.

15. No obliteration, interlineation or other alteration made inany will after the execution thereof shall be valid or have any effect except inso far as the words or effect of the will before such alteration is notapparent, unless such alteration is executed in the same manner as for the execution of the will pursuant to this Act; but the will, with such alterationas part thereof, shall be deemed to be duly executed if the signature of thetestator and the subscription of the witnesses is made in the margin or on someother part of the will, opposite or near to such alteration or at the foot orend of or opposite to a memorandum referring to such alteration and written atthe end or some other part of the will.

Revival of revoked will.

16. (1) A will or any part thereof which has been revoked in anymanner shall be revived by the re-execution thereof or by a codicil executed inthe manner pursuant to this Act and showing an intention to revive the will.

(2) When any will which has been partly revoked and afterwards whollyrevoked, is revived, such revival shall not extend to so much thereof as hasbeen revoked before the revocation of the whole thereof, unless an intention tothe contrary is shown.

Subsequent acts not to prevent operation of will.

17. No transfer, conveyance, assignment or other act, made ordone subsequently to the execution of a will or codicil of or relatingto any property therein comprised, except an act by which such will orcodicil is revoked pursuant to this Act, shall prevent the operation of the willor codicil with respect to such estate, right, share or interest in suchproperty as the testator has power to dispose of by will at the time of hisdeath.

Wills to speak from death.

18. Every will shall be construed, with reference to theproperty comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears in the will.

Residuary devises or bequests.

19. Unless a contrary intention appears in the will, any property comprised in any devise or bequest which fails or is void by reason ofthe death of the devisee or legatee in the lifetime of the testator or by reasonof such devise or bequest being contrary to law or otherwise incapable of takingeffect, shall be included in the residuary devise or bequest respectively,if any, contained in the will.

Effect of general devise or bequest on power of appointment.

20. A general devise or bequest of the estate or property of the testator described in a general manner shall be construed to include general devise any property to which such description extends which he may have power to appoint in any manner he may think proper and shall operate as an execution of such power unless a contrary intention appears in the will.

Devise or bequest without words of limitation.

21. Where property is devised or bequeathed to any person without anywords of limitation, such devise or bequest shall be construed to pass the feesimple or other right to the whole estate or interest in such property which thetestator had power to dispose of by will unless it appears by the will that onlya restricted interest was intended for such devisee or legatee.

Words importing want of failure of issue.

22. In any devise or bequest of property, the words “die without issue” or “die without leaving issue” or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention appears in the will:

Provided that this section shall not extend to cases where no issuedescribed in a preceding gift is born or if there is no issue who lives toattain the age or otherwise answer the description required for obtaining avested estate by a preceding gift to such issue.

Trustee or executor.

23. Where any property is devised or bequeathed to any trustee or executor, such devise or bequest shall be construed to pass the fee simple orother right to the whole estate or interest in such property which the testatorhad power to dispose of by will unless a lesser interest in such property isgiven to him expressly or by implication.

Devise or bequest of property to trustee without limitation.

24. Where any property is devised or bequeathed to a trustee without any express limitation of the estate to be taken by such trustee and the beneficial interest in such property or in the surplus rents and profits of the property, the property shall not be given to any person for life, or where such beneficial interest is given to any person for life but the purposes of the trust may continue beyond the life of such person, the devise or bequest shall be construed to vest in or pass to such trustee the fee simple or other right to the whole legal estate or interest in such property which the testator had power to dispose of by will and not an estate determinable when the purposes of the trust is satisfied.

Devise or bequest to children or other issue.

25. Where any person, being a child or other issue of the testator, to whom any property is devised or bequeathed for any estate orinterest not determinable at or before his death dies in the lifetime of thetestator leaving issue, and any such issue is living at the time of the death ofthe testator, the devise or bequest shall not lapse, but shall take effect as ifthe death of such person had happened immediately after the death of thetestator, unless a contrary intention appears in the will.

Privileged wills of members of RBAF etc.

26. (1) A member of the Royal Brunei Armed Forces being in actual military service and a mariner or seaman, being at sea, may dispose ofhis property or of the guardianship, custody and tuition of a child or mayexercise a power of appointment exercisable by will by a privileged will.

(2) For the purposes of this section, a privileged will means anydeclaration or disposition, oral or in writing, made by or at the direction ofthe testator which manifests the intention of the testator which he desires tobe carried into effect or to the guardianship, custody and tuition of a child orto the exercise of a power of appointment.

(3) A declaration may be a valid privileged will notwithstanding that itwas not executed in the manner appearing to have been intended by the testator or that it was intended by the testator subsequently to execute a formalwill to give effect to his testamentary dispositions, unless it appears that thefailure to execute such declaration in such manner of such formal will was due to the abandonment by the testator of the testamentary intentionsexpressed by such declaration.

(4) Sections 4, 5 and 6 shall not apply to privileged wills, nor is itnecessary for a written privileged will to be signed by the testator.

(5) A privileged will, other than a will which apart from theprovisions of this section would have been valid under this Act, shall benull

and void at the expiration of one month after the testator, being stillalive, has ceased to be entitled to make a privileged will.

Wills executed abroad.

27. A will, being in writing or a privileged will made under section26, executed outside Brunei Darussalam in the manner required by —

(a) this Act;

(b) the law of the place where it was executed;

(c) the law of the testator’s domicile at the time of itsexecution;

or

(d) the law of the testator’s domicile at the time of hisdeath,

shall be deemed to be a will executed for the purpose of being admitted toprobate in Brunei Darussalam.

Wills by citizens.

28. A will executed within Brunei Darussalam by a citizen, whatevermay be the domicile of such person at the time of making the will or at the timeof his death, shall, as regards movable property and immovable property situatein Brunei Darussalam, be deemed to be a will executed for the purpose of being admitted to probate in Brunei Darussalam if it is executed in the mannerpursuant to this Act.

Change of domicile.

29. No will shall be held to be revoked or to have become invalid inpoint of form nor shall the construction thereof be altered by reason only ofany subsequent change of domicile of the person making the will.