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This article highlights predictions from Corporate and M&A professionals from the KPMG global Legal Operations Transformation Services practice concerning the expected changes in mergers and acquisitions (M&A) markets. We focus on how these changes are expected to affect future legal functions and legal practice. As predictions, they are not intended to guarantee any specific outcomes.

After a strong rally post-pandemic, the world’s M&A markets have been quiet in recent months as ongoing high interest rates, inflation and global political uncertainty continue to create financing challenges and dampen appetites for new transactions.

While deal volumes may be muted, digitalization continues its rapid advance, with innovations such as Generative AI (Gen AI) being embraced by businesses and their legal teams with increasing enthusiasm. When M&A markets ultimately rebound — as is widely expected before the end of 2024 — the pressure and pace of the deal making process will likely create significant challenges for legal professionals.

How will rapidly changing approaches to M&A transform the legal functions of the future?

Here are our top predictions:

1. Legal professionals who use technology effectively in the deal-making process can gain a competitive advantage by boosting the speed and efficiency of M&A transactions.

Around the world, M&A deal-making will continue at a more rapid rate and complexity as advancing technology and more available data drive new efficiencies and transparency across the deal cycle. From matching buyers and sellers to post-integration planning, the role of M&A lawyers will likely evolve as routine tasks are standardized and automated.

With the huge volumes of data that are typically relevant in international reorganizations, legal professionals will increasingly assign technology to do more basic work. This includes scanning and producing documents, summarizing information, preparing reports and tracking time and expenses.

Approaches to due diligence will also change. Technology tools, especially Gen AI will streamline the scope of the legal review by delivering reliable information summaries quickly on matters such as standardized contracts, litigation, market terms and insurance policies. With Gen AI facilitating first drafts and research, the lawyer’s legal knowledge and review capabilities will need to be updated to ensure quality and accurate deliverables.

In fact, the opportunities that technology can bring to M&A transactions are so vast that they can seem overwhelming. As deals continue to pick up pace and workflows are adapted, it will be important for lawyers to understand that their role in the process remains fundamentally the same: to negotiate sound terms, execute and optimize buy-sell agreements, apply prior deal knowledge and create strategic business solutions for their clients.

Technology is designed to make the journey faster and smoother, but the destination is unchanged. The most successful legal teams will likely be those who use technology appropriately and efficiently to bring more added value services to their clients in a collaborative format.

2. Rapid technological adoption can help level the playing field for players in developing countries.

The digital divide between developed and developing countries will continue to narrow as businesses in countries such as Indonesia and Vietnam skip over previous technologies, and create the new infrastructure to support Gen AI, mobile, 5G and other contemporary advances. The latest wave of technology offers another opportunity for developing countries to “leapfrog” in areas such as developing precedents and running major due diligence exercises.

This may level the playing field by allowing new M&A players in developing markets to ramp up their capabilities quickly and compete on more equal footing with established investors and strategic buyers in developed jurisdictions. This speed of development will require extra effort and vigilance in areas such as training, the ethical use of AI and cybersecurity.

3. Proliferating environmental, social and governance (ESG) rules will require more detailed due diligence and access to significant volumes of previously unreported data.

New ESG reporting regulations are set to take effect in Europe, and similar rules are likely to be adopted in the Asia-Pacific and other regions. This aims to greatly expand the level of due diligence and data that potential buyers will need to manage to meet new compliance, reporting and other requirements.

While these rules are scheduled to come into effect over a period of years, companies should currently be developing systems to track the relevant information needed for future deal-making. This will be no small task since companies will have to provide detailed information and potentially obtain external assurance about topics that they may never have reported on before. Complying with the rules and opening new windows of transparency into the acquired company may also prompt changes to a target’s operations, structure and supply chain.

Similarly, deal lawyers will need to consider what diligence needs to be conducted to assess the maturity of target businesses to comply with these obligations and the associated representations, warranties and covenants that provide the contractual protections that underpin the diligence.

4. Evolving international tax rules will complicate international structures, planning and due diligence.

Following the pandemic, escalating trade tensions between the US and China and more recent geopolitical conflict in Europe, the Middle East and other areas, have caused many international companies to reconsider the locations of their operations and supply chains.

At the same time, the sweeping international tax rules developed by member countries of the OECD’s Inclusive Framework are being implemented by many global jurisdictions. Commonly referred to as BEPS 2.0, the two-pillar framework of the rules will reallocate a portion of corporate profits to market jurisdictions (Pillar One) and impose a minimum tax to ensure corporate profits are taxed at a 15 percent minimum.

In view of these new rules, many international companies and investors are streamlining their subsidiaries and holdings to minimize complexity and tax exposure. More attention is being paid to the location of their business’ value drivers. Increasing tax transparency under BEPS 2.0’s reporting rules is also influencing the structure of M&A transactions, with some buyers seeking to carve out activities, entities or geographies from agreements to insulate the core business or obtain watertight indemnities around potential liabilities that may come with the target business.

Legal teams will have their hands full dealing with the impacts of these new rules as jurisdictions set different effective dates and impose their own variations of safe harbors and other aspects of the BEPS 2.0 package. During this implementation period, it will be particularly important for due diligence teams to include a full complement of tax professionals to identify and advise on specialty areas such as international corporate tax, transfer pricing and indirect tax.

5. As the balance of deal-making shifts to Asia and developing countries, legal teams will require more linguistic and cultural diversity to prosper in all M&A markets.

Legal practice will continue to become more universal. Due to the historical and increasing dominance of US legal firms in global markets, English will likely continue to be the common legal language and concepts rooted in common law will continue to dominate training, deal negotiations and transaction arrangements. But legal teams of the future will need to include legal professionals with skills and experience to understand and manage the differences between US law and other common-law jurisdictions such as the UK, Malaysia and other Commonwealth countries.

In addition, capital flows from outside the historical largest players tend to be much more complex and harder to tap into than was once the case since there are now major companies, banks and funds doing deals from a greater array of countries. For example, big Indian corporates are making acquisitions in countries such as Brazil and Indonesia; Malaysian companies are making acquisitions in Türkiye and other parts of the world. This is not new, but as the number of economies providing outbound capital, or local banks become able to fund larger deals (and not rely on US/European/Japanese or Chinese banks), the need for a different footprint becomes more acute. To capture global M&A deal flows, there is an ever-increasing requirement to have relationships in a broader array of business centres and have senior lawyers in country who can build those relationships and execute those deals.

This will be particularly important in the Association of Southeast Asian Nations (ASEAN) region. With the region’s broad diversity of cultures and legal foundations, legal teams there may need to comprise lawyers who can deliver advice, review documents, negotiate terms and navigate cultural differences to deal with outbound, and especially inbound, transactions involving such disparate jurisdictions as China, Japan, Taiwan and India.

6. As deal cycles tighten, legal teams will need strong information management skills to get deals done quickly while mitigating risk.

Speed is vital for competitive due diligence work, but as the pace of deal making increases, risk management and controls will become even more important. For example, when one or both parties are involved are public companies or in a regulated industry, the due diligence process can involve 100 or more people. Beyond legal professionals, the proposed transaction may also need review by and input from banking, finance, tax, ESG, IT consultants and other specialists.

Each individual should be assigned the right level of access to different layers of information, much of it proprietary or confidential. The security of data rooms is a huge concern since inadvertent leaks could create problems preserving privilege, expose sensitive information and impair negotiations.

Further, as technology automates many common, lower-level due diligence tasks, junior-level stakeholders at investment banks and insurers, may lack the experience or training they need to properly recognize and manage sensitive information.

Due diligence in the future will therefore require robust information management, and legal teams will increasingly lead the process. This will likely include:

• deciding who needs access to what information
  
• coordinating the work of specialists
• sensitizing participants to matters of confidentiality, legal privilege and cybersecurity
• synthesizing key information for decision-makers
• maintaining high standards of risk management.

Skills in information management can enable legal teams to take charge of maintaining the fast flow of documents while mitigating confidentiality, regulatory and other risks. Communication and stakeholder relations skills will also be key.

Conclusion

As the world of M&A evolves, the legal profession is being given a tremendous opportunity to utilize new technologies and approaches to enhance deal flow and improve client results. However, lawyers should also be aware that these new technologies and approaches also require a new skill set. Lawyers who are able to respond quickly to shifting global attitudes, an increased use of AI and new regulations will likely be able to gain a substantial advantage both for their own teams and their clients.

This article is prepared by Hanim Hamzah, Head of Asia Pacific, KPMG Law; Gilbert Gan, Managing Partner, Zaid Ibrahim & Co.;  Stuart Bedford, Head of KPMG Law UK, KPMG in the UK; Franck Bernauer, Partner, Head of Legal, Avocat; Jeffrey Issacs, Head of GLS Strategy Implementation, KPMG in the US and Director, Global Legal Managed Services, KPMG International; and Lucia Lorenti, Partner, Ferraz de Camargo e Matsunaga Advogados Associados.

During the recent parliamentary session in July 2024, the Customs (Amendment) Bill 2024, Excise (Amendment) Bill 2024, Free Zones (Amendment) Bill 2024, Sales Tax (Amendment) Bill 2024 and Services Tax (Amendment) Bill 2024 was passed to designate Pulau 1 as a duty-free island similar to Langkawi, Labuan and Pangkor islands. The Bills have yet to be gazetted and the date of Royal Assent has yet to be determined. However, it is anticipated that the implementation of the Bills will promote the trade and tourism aspects of the Iskandar region as less stringent restrictions will be imposed on tax permits and applications for the sale of duty-free goods.[1]

Forest City, covering 14 square kilometres of reclaimed land on four artificial islands near the border of Malaysia and Singapore, is a mega project developed by Country Garden Pacificview Sdn. Bhd., a joint venture between Country Garden Pacificview Sdn.Bhd.  and Esplanade Danga 88 Sdn. Bhd.

Pulau 1, a 700-acre artificial island, is the most developed out of the four planned islands. It currently comprises a sales gallery, sales spaces, Marina Hotel, commercial units, duty-free shops, an international school, a small office/home office tower offering co-working space, waterpark, beach bar, and a beach activity area.[2]

As a duty-free island, Pulau 1 is set to offer duty free products, like liquor, chocolate, cosmetics and perfume, provided that the necessary eligibility criterias have been met. Deputy Finance Minister Lim Hui Ying proposed that the visitors who leave the island for Malaysia must submit receipts, invoices or documents of their purchases to the Royal Malaysia Customs Department, proving that the visitor has been in Pulau 1 for no less than 40 hours to ensure transparency and law enforcement in Pulau 1.[3]

The Johor government has also proposed for the Forest City Special Financial Zone to be included within the Johor-Singapore Special Economic Zone to boost the economy in Iskandar Malaysia. The incentives proposed, among others, include granting knowledge workers a 15% flat income tax rate, and companies and individuals will be offered special-rate tax incentives and expedited immigration lanes to facilitate the entry of experts from aboard.[4] The incentives shall result in lower cost of doing business and to attract talent and international businesses into the zone. The said incentives for Forest City Special Financial Zone, as stated by Johor Menteri Besar Datuk Onn Hafiz Ghazi, is targeted to be finalized in August before the signing of the Johor-Singapore Special Economic Zone agreement between Malaysia and Singapore.[5]

Forest City has additionally applied for Malaysia Digital status recognized by the Malaysian Digital Economy Corporation to attract hi-tech sector investors where enterprises related to digital centres, smart technology and green intelligence fields such as big data analysis, artificial intelligence and financial technology will enjoy income tax exemptions up to 10 years.[6]

There have also been on-going discussions for infrastructure projects, including the Kuala Lumpur-Singapore High-Speed Rail, and the Johor-Singapore Special Economic Zone, embarked for the area to increase cross-border economic connectedness as Forest City is at the most ideal location which had a significant influence in pioneering these new measures on tourism and economic activity.[7]

The enactment of the Bills and the continuous development at Forest City are poised to usher in a new era of economic vitality in the Johor region. This transformation provides job opportunities and represents a gateway to a thriving economy and a vibrant business landscape. As the development unfolds, it is expected to open doors to a myriad of work opportunities, attracting a diverse pool of talent and fostering innovation and growth for Johor.

If you have any questions or require any additional information, please contact Lee Lily @ Lee Eng Cher, or the Zaid Ibrahim & Co partner you usually deal with. This article was prepared with the assistance of Lee Jean, Associate at Zaid Ibrahim & Co.

[1] ‘Pulau 1 in Johor’s Forest City to be duty-free island’ (Malay Mail,18 July 2024) <https://www.malaymail.com/news/malaysia/2024/07/18/pulau-1-in-johors-forest-city-to-be-duty-free-island/144135>.

[2] Ben Tan, ‘What is Pulau Satu in Johor’s Forest City, Malaysia’s next duty-free island?’ (Malay Mail, 31 July 2024) <https://www.malaymail.com/news/malaysia/2024/07/31/what-is-pulau-satu-in-johors-forest-city-malaysias-next-duty-free-island/145199>.

[3] 'Pulau 1 in Johor’s Forest City to be duty-free island’ (Malay Mail,18 July 2024) <https://www.malaymail.com/news/malaysia/2024/07/18/pulau-1-in-johors-forest-city-to-be-duty-free-island/144135>.

[4] Jassmine Shadiqe, ‘Forest City granted special financial zone status to attract foreign investment, PM reveals’ (New Straits Times, 25August 2023) <https://www.nst.com.my/news/nation/2023/08/947406/forest-city-granted-special-financial-zone-status-attract-foreign>; Official Portal of Ministry of Finance, ‘Special Financial Zone to be created in Forest City –PM Anwar’ <https://www.mof.gov.my/portal/en/news/press-citations/special-financial-zone-to-be-created-in-forest-city-pm-anwar>.

[5] Jassmine Shadiqe, ‘Forest City’s SFZ to be integrated into Johor-Singapore SEZ’ (New Straits Times, 12 August 2023) <https://www.nst.com.my/news/nation/2024/08/1090368/forest-citys-sfz-be-integrated-johor-singapore-sez>.

[6] Malaysia Digital Economy Corporation, ‘Announcement on the official launch of Malaysia Digital (MD) Tax Incentive’ <https://mdec.my/announcement/md-tax-incentive>; ‘Forest City expansion fuels growth’ (The Star, 5 August 2024) <https://www.thestar.com.my/news/nation/2024/08/05/forest-city-expansion-fuels-growth>.

[7] ‘Immediate returns on investment, 5 Highlights of Forest City Prime Commercial Units with Lease’ (Forest City, 2 August 2024) <https://forestcitycgpv.com/news/245-immediate-returns-on-investment-5-highlights-of-forest-city-prime-commercial-units-with-lease>; ‘KL-S’pore high speed rail to boost sentiment on the property sector’ (The Star, 29 January 2024) <https://www.thestar.com.my/business/business-news/2024/01/29/kl-spore-high-speed-rail-to-boost-sentiment-on-the-property-sector>.

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Corporate governance in Malaysia has seen significant efforts to advance transparency, integrity and sustainability within companies. This article discusses three key areas of focus in the context of corporate governance.

The Malaysian Communications and Multimedia Commission (“MCMC”) announced on 1 August 2024 that a new regulatory framework for Internet messaging service and social media service will come into effect on 1 January 2025.

Two Ministerial orders were gazetted on 1 August 2024 to amend the following subsidiary legislation under the Communications and Multimedia Act 1998 (“CMA”):

(i)       Communications and Multimedia (Licensing) Regulations 2000; and

(ii)      Communications and Multimedia (Licensing) (Exemption) Order 2000

With the amendments, service providers of “Internet messaging services” and “social media services” with more than 8 million users in Malaysia must be registered under an Applications Service Provider Class (“ASP (C)”) licence under the CMA (collectively referred to as the “Relevant Service Providers”).

“Internet messaging services” and “social media services” are defined as follows:

“Internet messaging services” means an applications service which utilizes Internet access service that enables a user to communicate any form of messages with another user.

“Social media services” means an applications service which utilizes Internet access service that enables two or more users to create, upload, share, disseminate or modify content.

MCMC has also published an Information Paper and FAQ Guide on the new licensing framework which can be accessed here.

MCMC has stated that end users of services offered by these Relevant Service Providers will not be affected by the new regulatory framework. It also reiterated that end users can expect a safer online environment, better protection against harmful content, and clearer avenues for addressing complaints and concerns.

The Relevant Service Providers are given a grace period of five months from 1 August 2024 to apply for the ASP (C) licence and comply with the relevant licensing requirements. The validity period for ASP (C) licence held by the Relevant Service Providers is one year from the registration date and the licence is required to be renewed annually.

For further enquiries, you may contact Nadarashnaraj Sargunaraj, Stanley Lee Wai Jin,  Vivienne Caitlin Michael of Zaid Ibrahim & Co.

This article explores the protection of sui generis or unique IP rights in Malaysia and key issues pertaining to geographical indications, layout designs of integrated circuits and protection of plant varieties.

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Bank Negara Malaysia (“BNM”) has introduced enhanced requirements through the Policy Document on the Disposal and Purchase of Impaired Loans/Financing (“Policy Document”), which came into effect on 25 June 2024.

The Policy Document aims to encourage more buyers for the impaired loans/financing market, providing better protection to borrowers and elevating efficiency in disposal and purchasing of impaired loans/ financing.[1] Accordingly, the Policy Document covers requirements prior to and post the disposal and purchase of impaired loans/financing.[2]

This Policy Document applies to licensed banks, licensed investment banks, licensed Islamic banks (excluding international Islamic banks) and non-bank buyers.

This article summarises notable provisions of the Policy Document.

Section 100 of the Financial Services Act 2013 and section 112 of the Islamic Financial Services Act 2013 allows parties intending to enter into any agreement or arrangement to transfer the whole or any part of the business of a licensed person. They are required to submit a joint application to obtain BNM’s approval prior to effecting such agreement or arrangement.

Loans/financing eligibility criteria

From the seller’s perspective, the following criteria must be met prior to submitting the joint application:

(a) whichever occurs earlier:

    (i) the impaired loans/ financing remains classified as impaired for a minimum period of 12 months from the date it was first classified as impaired; or

    (ii) all reasonable efforts to recover the impaired loans/financing have been exhausted by the seller; and

(b) the impaired loans/financing must not be loans/financing that was granted for or linked to projects of strategic importance.[3]

Further, a seller must only sell such impaired loans/financing to the following parties:

(a) domestic banking institutions or locally incorporated foreign banking institutions in Malaysia; or

(b) non-banking institutions that are locally incorporated and are a resident for tax purposes.

From the buyer’s perspective, the following criteria must be met:

(a) proven track record in debt management and recovery, and minimal complaints against its debt management and recovery practices;

(b) adopted satisfactory recovery approaches, including having a dedicated unit with competent personnel to effectively manage debt collection and complaints from borrowers;

(c) adequate and competent staff with recognised qualifications from reputable institutions of higher learning, or adequate knowledge and training, including, if applicable, in Islamic banking and finance or Shariah law; and

(d) where a buyer has the intention to outsource the collection or recovery of the impaired loans/financing to a service provider, the buyer must meet the above criteria.

Note that the buyer must comply with the above requirements on a continuous basis, even after receiving approval from BNM.

Business conduct requirements

From the seller’s perspective, a written notification must be given to affected borrowers of its intention to dispose of its impaired loans/financing to buyer within 90 calendar days prior to entering into an agreement or arrangement for the disposal of the impaired land/financing to the buyer.

The seller must allow borrowers a period of 90 days from the date of the notice to regulate and settle their outstanding loans/financing, before entering into an agreement or arrangement for the disposal of the impaired loans/financing to the buyer.

Upon completion of the disposal of impaired loans/financing, the seller must give written notification to the affected borrowers on the following within seven days:

(a) completion of the disposal, including name and contact number of the buyer; and

(b) all complaints or any matters related to such impaired loans/financing prior to completion of the disposal shall be directed to the seller.

From the buyer’s perspective, the buyer must inform the affected borrowers within seven days of the completion of disposal that:

(a) any complaints or queries pertaining to the purchase, management and recovery procedures of the impaired loans/financing must first be directed to the buyer, unless the complaint or query relates to matters prior to the completion date of the purchase of the impaired loans/financing; and

(b) if the affected borrowers are not satisfied with the decision of the buyer on the complaints or queries raised, the buyer must inform the affected borrowers on the availability of alternative redress avenues.

Other Requirements

1. Accounting Treatment

A seller must recognise any losses that may arise at the point of the completion of the disposal of the impaired loans/financing to a buyer.

A buyer that is a banking institution must at all times comply with paragraph 10 of the Policy Document on Financial Reporting or the Policy Document on Financial Reporting for Islamic Banking Institutions and the Malaysian Financial Reporting Standards (MFRS9), as the case may be.

2. ‍Disposal of impaired loans/financing to entities within the same group

In a situation where the seller and buyer are banking institutions within the same group, they shall ensure that for purposes of accounting, the impaired loans/financing are consolidated at the group level.

3. Additional requirements for Non-bank Buyers

Note that BNM has clearly set out additional requirements to be complied by non-bank buyers, once the non-bank buyer assumes the rights and titles to such impaired loans/financing.

Frequently Asked Questions

To clarify and assist in understanding some of the provisions of the Policy Document, BNM has issued a set of Frequently Asked Questions on the Policy Document on 25 June 2024. This document can be accessed here.

Conclusion

The enhanced Policy Document provides comprehensive definitions, explanations and clear requirements. Key provisions include stricter eligibility criteria for sellers, increased requirements for buyers, particularly non-bank buyers, and strengthened borrower protection measures. The policy also outlines accounting treatments and prohibits onward sales of impaired loans.

Further, the enhanced Policy Document eliminates the 49% foreign ownership limit found in the previous guideline and introduces stringent safeguards to protect borrowers. In addition, third-party buyers must now demonstrate a proven track record in debt management and recovery.

The notification period to borrowers regarding the intention of sellers to dispose the impaired loans/financing is also clearly set out in the Policy Document. The 90-day notification period mandate enhances transparency and fairness for affected borrowers.

If you have any questions or require any additional information, please contact Chan Xian Ai, or the Zaid Ibrahim & Co partner you usually deal with.

This alert is for general information only and is not a substitute for legal advice.

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[1] Bank Negara Malaysia, ‘ Policy Document on Disposal and Purchase of Impaired Loans/Financing’ <https://www.bnm.gov.my/-/pd-dpil-en > accessed 26 July 2024.  

[2] Policy Document on Disposal and Purchase of Impaired Loans/Financing, para 1.4.

[3] This includes loans/financing granted for or related to national infrastructure projects (such as, in the area of transportation, telecommunications, energy, logistics and utilities), as well as those identified by the Government as strategic through its various developmental plans (such as projects involving circular economy, integrated water resource management and digital connectivity under the 12^th Malaysia Plan 2021-2025).

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Nadarashnaraj Sargunaraj and Nurul Syahirah Azman have recently contributed their insights to the Malaysia Chapter of the Global Legal Insights – Merger Control 2024 published by the Global Legal Group. The publication covers practical insights on merger control in Malaysia, with particular focus on the Communications and Multimedia Act 1998, the Malaysian Aviation Commission Act 2015 and the merger controls proposed to be introduced to the Competition Act 2010. Recent approval and exemption decisions by the relevant Malaysian sector regulators are also discussed. The publication can be viewed at GLI’s website or alternatively, a copy of the publication can also be downloaded in the link provided below.

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Birth, old age, sickness and death – these are the inevitable stages in human life.

The legal procedure after a person’s death can be complex, especially when a person dies intestate, or without leaving a will.

There are clear advantages to having a will. It allows the person making the will to choose their beneficiaries, determine how assets are to be distributed, and to appoint an executor to administer the estate.

On the other hand, when a person dies intestate, assets will be distributed in accordance with the Distribution Act 1985 and a court-appointed trustee or executor will administer the estate. This more cumbersome process may give rise to assets being distributed in a way that is not in accordance with the deceased person’s wishes, or family disputes.

That said, there are certain distributions that are considered distinct from a deceased’s inheritable estate. This article explores the distribution of insurance benefits and Employment Provident Fund (“EPF”) upon the death of an insured person or EPF member, respectively, in Malaysia.

Insurance

In Malaysia, monies under insurance policies do not form part of the deceased’s estate. This is to protect the interests of the insured’s spouse and children in the policy against a claim by any creditor of the insured.

This is provided for in section 23(1) of the Civil Law Act 1956:

23.  Moneys payable under policy of assurance not to form part of the estate of the insured

(1) A policy of assurance effected by any man on his own life and expressed to be for the benefit of his wife or of his children or of his wife and children or any of them, or by any woman on her own life and expressed to be for the benefit of her husband or of her children or of her husband and children or any of them, shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not so long as any object of the trust remains unperformed form part of the estate of the insured or be subject to his or her debts.

The relationship between the insurer and the insured (or the “deceased” for the purpose of the article) is a contractual one (see the Federal Court decision in Malaysian Assurance Alliance Bhd v Anthony Kulanthai Marie Joseph (suing as a representative of the estate of Martin Raj a/l Anthony Selvaraj, deceased) [2010] 4 MLJ 749).

Therefore, upon the death of the insured, the terms of the insurance contract will take effect – all monies payable under the insurance policy will then be paid to the named nominee in accordance with the insurance policy and the Financial Services Act2013 (“FSA 2013”).

The payment of policy monies is not automatic. The nominee must make an application to the insurer, notifying of the death of the insured and accompanied by proof of death. Upon receipt of such claim, the insurer shall pay the policy monies to the nominee. However, if the nominee fails to claim the policy monies within 60 days of the insurer becoming aware of the death of the insured, the insurer shall immediately notify the nominee in writing of his/her entitlement to claim the policy monies. Where the insurance company has been made aware of the death of the policy owner and notified the nominee of their entitlement, and within 12 months the nominee has failed to claim the policy monies, the insurer shall proceed as though no nomination was made.

In situations where the insured did not make any nomination in the policy, the insurer shall pay the policy monies to the lawful executor or administrator of the estate. Where the insurer is satisfied that there is no lawful executor or administrator of the estate at the time of payment, the insurer may pay the policy monies to the deceased’s spouse, child or parent in accordance with the Distribution Act 1958.

Therefore, insurance policy holders are advised to take necessary steps to nominate the intended recipients of the policy monies. This ensures that after the death of the insured, the policy monies will be paid to the intended recipient.

It is also advisable for the nominee to make the insurance claim as soon as possible after the death of the insured to ensure efficient payment of the policy monies.

It must be noted by virtue of section 25 of the Civil Law Act 1956, the nature of nomination varies for Muslim policy owners (also known as takaful participant). The nominee of a Muslim policy owner can either be an executor or a beneficiary of the takaful benefits. If a person is nominated as an executor, he/she will take the takaful benefits only as an executor and must distribute the monies in accordance with Faraid laws. However, a nomination for a nominee to be a beneficiary under a conditional hibah (granting ownership of property from one party to another without any consideration) [1] shall have the effect of transferring ownership. The takaful benefits payable to the nominee upon the death of the insured person shall be transferred to the named nominee.

Employees Provident Fund

The distribution of EPF mirrors that of insurance policies. The contributions and interest do not form any part of the deceased’s estate, and upon the death of the deceased, it shall remain separated from the deceased’s other assets (How Yew Hock (Executor of The Estate of Yee Sow Thoo, deceased) v Lembaga Kumpulan Wang Simpanan Pekerja [1996] 2 MLJ474). If nomination was made, the fund will then be payable to the nominee.

Section 54 (1A) of the Employees Provident Fund Act 1991 provides that the EPF member may make nomination for the purpose of payment of credit after the death of the member. When a nomination is made, it has the effect of appointing an individual or institution to receive and oversee the EPF savings in the event of one’s demise. A nominee would then be entitled to the nominated portion of the deceased’s EPF savings.

However, where the EPF member dies without first nominating a beneficiary, the member’s next-of-kin is entitled to make a claim for the monies in the savings. This includes:

• the member’s widow/widower, children (or their guardian);
• parents, or siblings for married members; or
• parents or siblings for unmarried members.

If the deceased left a will with a residuary estate clause (a clause that disposes of assets that have been overlooked or are left over), then the EPF savings will form part of the residuary estate of the deceased EPF member and shall be distributed in accordance with his or her express wishes. If a grant of probate or letter of administration has been taken out for the deceased’s estate, the executor or administrator may then act accordingly to apply for the withdrawal of the savings for the benefit of the named beneficiaries or the next-of-kin, as the case may be.

The amount varies according to when the application is made: [2]

In the event of one’s untimely demise, EPF savings may serve as an assurance that the deceased’s next-of-kin are financially cared for. For easy and convenient withdrawal upon death, all EPF members are highly encouraged to make nominations of beneficiaries early on.

Earlier this year, EPF clarified that where there is more than one beneficiary nominated and one of them dies, then only the portion that was bequeath to the deceased beneficiary will be invalid. If the EPF member failed to update his/her nomination before they died, then the surviving beneficiaries will receive their portion accordingly. However, if the member has named only one beneficiary and the beneficiary dies, then the nomination will be deemed void until a new beneficiary is nominated. [3]

Commentary

Other than making nominations for your insurance policies and EPF, it is important to remember that when creating wills and testaments, insurance policies and EPF savings are not to be included as assets.

The separation of both insurance and EPF from the estate of a deceased are restrictions created by lawmakers for the purpose of public policy, ensuring that loved ones are provided for upon the death of an insurance policy owner or EPF member. Hence, one should not consider insurance policies and EPF credits as a part of one’s inheritable assets.

If you have any questions or require additional information, please contact Jeyakuhan Jeyasingam or the partner you usually deal with at Zaid Ibrahim & Co.

This alert is for general information only and is not a substitute for legal advice.‍

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[1] “Managing Hibah” (My Government) <https://www.malaysia.gov.my/portal/content/27730> accessed 11 June 2024.

[2] “Helping Loved Ones in Times of Need” (EPF) <https://www.kwsp.gov.my/member/account-centre/death> accessed 11 June 2024.

[3] “Chain Messages on Nomination” (EPF) <https://www.kwsp.gov.my/w/chain-email-on-nomination> accessed 11 June 2024.

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