Many assume that a Will is the be-all and end-all for determining one’s intention. This is, however, misplaced.
In a situation where one’s Will clashes with the contents of a Nomination Form (be it for EPF monies or an insurance policy), the latter shall prevail.
The legal framework: Insurance policies
The statutory framework is, oddly enough, contained in the Financial Services Act 2013. Section 130 FSA 2013, Schedule 10 Paragraph 3(2) states:
(2) Subject to subparagraph (1), a nomination shall not be revoked by a will or by any other act, event or means.
The legal framework: EPF monies
As for EPF monies, Section 71(b) of the EPF Act 1991 states that the Minister may make regulations pertaining to nominations.
Section 7(2) of the EPF Regulations 2001 specifically provides as follows:
(2) The nomination mentioned in subregulation (1) shall not be revoked by any will or by any other act, event or means.
A consideration of case law
In How Yew Hock v KWSP [1996] 2 MLJ 474, the Federal Court held that a Nomination Form, whilst having certain testamentary characteristics, is not a testamentary paper. As such, it need not satisfy the rigours of the Wills Act 1959:
The primary issue in this appeal was whether the said nomination under the EPF Regulations was a testamentary document which must comply with the provisions of the Wills Act 1959. Based on the authorities referred to us by counsel, we had no hesitation in coming to our conclusion that the said nomination was not a testamentary document, although possessing certain characteristics of a will, in particular it is ambulatory until the death of the nominator.
The Federal Court went on to hold that a validly-executed Nomination Form would be valid:
Therefore, in the instant case, it was obvious that the said nomination was a statutory nomination, which operated by force of the EPF Act 1951 and Regulations. Section 20 of the EPF Act 1951 empowers the Minister of Finance, after seeking the advice of the EPF Board, to make regulations to provide for the nomination by a member of the Fund of the persons to whom any amount standing to his credit in the Fund at the time of his death is to be paid at his death. Hence, by virtue of this section, the EPF Regulations came into force. The power to make nominations by a contributor of the Fund is provided for under reg 9. The nomination to be valid must be made in writing on the prescribed form (Form KWSP-4) signed by the nominator whose signature must be attested by a witness. The form was registered by the EPF Board on 30 October 1986 and retained for safe-keeping until after the deceased's death. In fact, it was not disputed that the said nomination had complied with the aforesaid provisions and was therefore valid.
In Krishnaveni v Bawaneswary [2013] 10 MLJ 106, the HC applied How Yew Hock in holding that a second EPF nomination would take precedence:
[8] The issue is whether the first nomination or the second nomination of the deceased is valid. In considering this issue, the court has to determine whether the first nomination has been revoked or cancelled by the deceased, and has been superseded by the second nomination.
The HC considered Rule 34 of the EPF Rules 1991 and Regulation 7 of the EPF Regulations 2001 to ultimately hold that as the second nomination was duly-filled and lodged, it would serve to revoke the first nomination:
[17] By reading the above reg 7 with the above r 34, it is very clear that the first nomination has ceased to have effect under reg 7(1)(b) of the EPF Regulations 2001 when the deceased made the second or subsequent nomination under r 34(2) of the EPF Rules 1991. The side notes to the EPF Form 4 do not contain the word 'or' between reg 7(1)(b)–(c). However, it must be stressed here that the side notes are merely notes and they must be read together with the substantive provisions in reg 7(1) of the EPF Regulations 2001 where the word 'or' appears in between or connects reg 7(1)(b)–(c).
[20] In the present case, the deceased acted under reg 7(1)(c) of the EPF Regulations 2001 and this would suffice to meet the requirements of that regulation for the first nomination to cease to have effect.
[21] I therefore hold that the first nomination is no longer valid. It has ceased to be of legal effect upon the second nomination being made by the deceased. For this reason, the first plaintiff has no locus standi to maintain the action as a nominee. However, she can maintain the action on behalf of the two children as their lawful guardian.
[22] I agree with the submission of counsel for the third defendant that where a nomination under the EPF Act 1991 is made, it does not operate as a will. In my view, an EPF nomination is an express statutory nomination which exists independently and is not a Will or testamentary disposition. It does not come under the ambit of s 6(1) of the Inheritance (Family Provision) Act 1971 and the Distribution Act 1958.
Conclusion
From the above, it is manifest that a Nomination Form falls into its own niche category. It is able to supersede a Will and one must be particularly careful to ensure that the same is updated accordingly, should the need arise.
GAVIN JAYAPAL
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