Probate and Administration of

Estate

Concept
Legal process in relation to the administration and
distribution of an estate (movable and immovable
property) of a person upon death.
Categories:
i. Testacy: Deceased left behind a valid will.
ii. Intestacy: Deceased has left no valid will.
iii.Partial intestacy: Deceased has left a will but it does
not dispose off his entire estate.

Concept
a) Executor (testacy) or administrator (intestacy): Person or persons
who are vested with authority to administer, divide and distribute
estate.
b)Beneficiary(ies): The person or persons who will inherit the estate.
c) Application for letters of probate: Testate
d)Application for letters of administration: Intestate.

Administration of an Estate
Why is a grant necessary?

Person acting on probate or administration be protected and

indemnified. (Sec 64 PAA)
Futuristic Builders Sdn. Bhd. V Harinder Sight & Ors [2008] 2
MLJ 273
Karn Woon Lin & Anor v Cheah Chor Bok [2010] 5 MLJ 834
Dato Ramesh a/l Rajaratnam v Datin Zaleha bt Abd Rahman
& Ors [2014] 6 MLJ 651
Jigarlal Kantilal Doshi v Amanah Raha Bhd (as the
administrator of the estate of late Kantilal Prabhulal Doshi,
deceased) and other appeals [2014] 6 MLJ 629

Jurisdiction
a)May apply to Amanah Raya Berhad: if movable property and less than
RM 600,000.00 whether testate or intestate. Sec 17 of the Public
Trust Corporation Act 1995 (PTCA)
b)May apply to Land Administrator if small estate. Sec 4 of Small Estates
(Distribution) Act 1955 (SEDA). Definition of small estate at s. 3(2)
SEDA: estate of a deceased person not exceeding RM 2 million.
Whether testate or intestate.
Section 5 SEDA: nothing in the SEDA shall effect the exclusive jurisdicition to
grant probate or letters of administration in respect of small estate. Grant
when made shall have effect as if the estate had not been a small estate.

c)High Court: whether testate or intestate.

Types of Grants by the High Court

a)Probate- where deceased has left a valid will and the executor is
able and willing to prove the will.
b)Letters of administration- where deceased has left no valid will.
c)Letters of administration with will annexed- deceased has left a
valid will but there is no proving executor.
d)Letters of administration De Bonis Non- a previous grant was
made, but executor or administrator died, absconded, etc. before
the administration was completed.
e)Resealing- where grant granted by court outside Malaysia- has to
be sealed with the seal of the High Court to be effective in
Malaysia (Pt. IV, ss. 51-58, PAA).

Testate
a)Letters of probate deceased dies leaving a will or other
testamentary document.
b)Sec. 2 Wills Act 1959 defines will as: a declaration intended to
have legal effect of the intentions of a testator with respect to
his property or other matters to be carried out upon his death.
c)Mode of execution of will: in writing and executed under sec.
5 Wills Act 1959. Maker of will must also have the mental
requirements to make the will besides those stated in sec. 5.
If a testator lacks the mental capacity to make a will, will is
rendered ineffective: Banks v Goodfellow (1870) 5 LR QB 549.

d) Sec. 11 Wills Act- Executor not incompetent to be witness.

Executor may be a witness to provide execution of such will.

e) O71 ROC- Every will of which an application for grant of probate is

made shall be handed over to the Registrar on the hearing date
and certified true copy of the will be exhibited in the affidavit in
support of the Originating Summons.

Nature of Probate Proceedings

a)Non Contentious Probate
There is a valid will or other testamentary document.
No challenges to the will.
Executor(s) identified, willing and able to carry out
administration and distribution of estate.
Applied under O71 of the ROC by way of originating summons.

b)Contentious Probate
Grant of probate is disputed.
Will is being challenged.
Applied under O72 ROC by way of writ action.

Testate
a)Where there is a proving executor- application for
grant of probate by way of originating summons and
supported by an affidavit in support (Forms 6 & 159
ROC) verified by oath and satisfy O. 71 ROC.
b)Contents of the affidavit in support:
i. Describe the relationship of the applicant with the
deceased (son, wife, daughter);
ii. State the domiciled (permanent home) of the deceased;
iii.Describe the deceased by some other name if necessary;

c)Documents to be exhibited in the affidavit in

support includes:
i. Certified true copy of the will O71 r7(1);
ii. Translation of will not in English language O71 r7(2);
iii.Death certificate;
iv.Executors identity card;
v. List of assets and liabilities of estate.

d)If application is made after a lapse of 3 years from death, the reason for
the delay must be set out in the originating summons (O. 71 r. 5(6) ROC).
e)Duty of Registrar on receiving the application:
i. Not to allow any grant until and unless he is satisfied with the answers: O. 71 r.
4(1).
ii. Require proof of the identity of the deceased or the applicant for a grant beyond
the pleased facts in the application: O.71 r.4(2).
iii.Not to issue any grant of probate within seven days of the death of the deceased.
O.71 r. 4(3)
iv.To give notice to the Registrar of the Principal Registry and not notify the number
of probate where the latter shall enter the number in Probate Book: O. 71 r. 4(4).
v. To notify the Registrar of the Principal Registry of all grants made under PAA and
Order 71 ROC O. 71 r. 4(4).

f) Hearing of the application:

i. Applicant may be required to attend hearing.
ii. If there is no unresolved issues, Registrar will allow the
application.

g)After grant is approved, extract it. No

administration bond required.
h)Collect assets and pay debts. See sec. 32 Trustees
Act 1949.
i) Distribute the assets in accordance with the terms
of the will. Re Estate of Teoh Cheow Choon [1994]

Testate: Possible Challenges

Types of possible challenges:
Renunciation of right to probate.
Caveat under Order 71 ROC.
Renunciation:
A person who is entitled to apply for probate may renounce such right.
Types of renunciation:
Express renunciation.
Constructive renunciation.

Testate: Possible Challenges

Express Renunciation
Any person who is or may become entitled to
representation may expressly renounce his right to
representation: sec. 8 PAA.
Renunciation may be made orally, on the hearing
of the application or in writing signed by the
person so renouncing and attested either by
advocate or any person whom an affidavit may be
sworn: sec. 8(2).
Constructive Renunciation

Caveats
Lodged by persons having an interest in the grant.
Purpose: to give time pending investigation of his
own application for grant.
Procedural Rules
a)Entry of caveat: O. 71 r. 37(1).
Person who wishes to ensure no grant is made without
first giving notice may enter caveat.

c)Notice of caveat.
Registrar shall forward a copy of the caveat and give notice in Form 158 to the
Registrar of the Principal Registry: O. 71 r. 37(2).

d)Name of caveator.
Where caveat is entered by solicitors on the caveators behalf, the name of the
caveator shall be stated: O. 71 r. 37(4).

e)Caveat to remain in force for 6 months: O. 71 r. 37(5).

May nter further caveat at expiry of 6 months.

f) Registrar not to order grant if he has knowledge of caveat: O. 71 r. 37(7).

g)Warning in Form 165.
A caveat may be warned by the issue from the Registry a warning in Form 165 at
the instance of any person interested. He shall state his interest and shall require
the caveator to give particulars of any contrary interest in the estate. The warning
shall be served on the caveator and the Registrar of the Principle Registry: O. 71 r.
37(8).

h)Withdrawal of caveat
A caveator who has not entered appearance in Form 166 may at any time withdraw
his caveat by giving notice to the Registry. Also service of notice to the Registrar of
the Principal Registry. Caveat shall cease to have effect. If a person has been
warned, to serve such notice to the person. O. 71 r. 37(9).

i) Entering appearance.
A caveator having interest contrary to that
of person warning may, within 8 days of
service of warning upon him inclusive of
the days of such service, enter
appearance in Form 166. O. 71 r. 37(10).

j) Matter deemed to be contested.

Upon appearance being entered in answer
to the warning of a caveat, matter shall be
deemed contested. O. 71 r. 37(14).

k)Caveat ceased to have effect.

Testate: Possible Challenges

Effects of Caveat
a)Remain in force subject to a decision of the court
or the caveat is withdrawn : O. 71 r. 40(a).
b)Any caveat in respect of an appearance to a
warning has been entered shall remain in force
until start of probate action: O.71 r.40(b).
c)The commencement of probate action shall
operate to prevent the sealing of a grant: O. 71 r.
40(c).

Intestate
Application for grant of LA filed when:
a)Deceased dies without a will or other
testamentary document.
b)There is a valid and enforceable will but the
executor had died before proving the will.
c)Person who obtained grant ofLA did not complete
the administration of the estate.

Intestate
If there is no dispute on the grant of
LA, may be filed as non-contentiuos
application.
Information of documents in grant of
LA:
a)The applicant is entitled to apply for the
grant by order of priority; O.71 r.19.
b)There are no challenges to the application
being granted LA;
c)The applicant is willing and able to carry
out the administration and distribution of

Intestate: Non Contentious

Documents to be exhibited in the affidavit in
support:
a)Death certificate.
b)Administrators identity card.
c)List of assets and liabilities.

Intestate: Non contentious

Contents in the Affidavit in Support:
a)Clearing of persons having prior right: State what
manner all persons having a prior right to a grant
have been cleared off; O. 71 r. 5(2).
b)Describe the relationship of the applicant with the
deceased; O. 71 r. 5(5).
c)State where the person died domiciled;
d)Describe the deceased by some other name if
any; O. 71 r. 5(3).
e)State reasons for the delay if application made

Intestate
Order for priority of grant: Sec. 30 Probate and Administration Act
1959.
be granted to some one or more persons interested in the residuary estate of the
deceased, unless by reason of the insolvency of the estate or other special
circumstances the court thinks it expedient to grant administration to some other
person.

Intestate: Administration Bond

a)Applicant required to give security for the due
administration of the estate. Referred to as
Administration Bond.
b)Generally secured by:
i. A bond;
ii. 2 sureties; and
iii.In the amount of the value of the estate after deducing
debts secured by mortgage or charge.

Intestate: Administration Bond

The requirement for security maybe exempted as
follows:
a)Gross value of the estate does not exceed RM
50,000.00 : Sec. 35(1)(b) PAA.
b)Court may for sufficient reason dispenses the
requirement for sureties or payment of the bond: sec.
35(2).
c)Trust corporation that has obtained administration: Sec.
35(3).
d)Where administrator entitled to the whole of the estate
after payment of debts: Sec. 35(4).

Intestate: Administration Bond

Court also has discretion to:
a)Vary the number of sureties or the ampunt of bond if there
is sufficient reason to do so;
b)Assignment of the administration bond to some names
person if it appears that the condition of the bond is
broken: Sec. 37 PAA;
c)Discharge the administration bond where:
i. Administrator had given the bond under a law that has been
repealed;
ii. Unable to ascertain the intended beneficiary: Sec 38 PAA.
iii.There is a good reason shown for the court to do so.
** practical: apply for exemption of the requirement for having
sureties and seek an order that the administrator gives a
personal undertaking to the due administration of the estate.

Intestate
Application to be filed at the Registry.
Upon receiving it, Registrar has the duty
to:
a)Not to allow any grant until and unless
he is satisfied with the answers; O. 71
r. 4(1).
b)Require proof of the identity of the
deceased or the applicant for a grant
beyond the pleaded facts in the
application: O. 71 r. 4(2).
c)Not to issue any grant of LA within

Intestate
f) Hearing of the application:
i. Applicant may be required to attend
hearing.
ii. If there is no unresolved issues, Registrar
will allow the application.

g)After grant is approved, extract it.

h)Collect assets and pay debts. See sec.
32 Trustee Act 1949.
**Note: In respect of possible

Islamic Inheritance
a)Distribution of Muslim estate based on
faraid whereby Muslims estate is
subject to a few liabilities and
responsibilities that must be
discharged by the beneficiaries before
it can be apportioned according to
faraid distribution.
b)The sequence of steps as follows:
i. Payment of funeral expenses of the
deceased.
ii. Setting of debts of the deceased- alms

d)Once all debts and liabilities of the estate have been settled, an
application for sijil faraid is filed at the Shariah Court. Purpose:
Ensuring Muslims estates divided and apportioned to beneficiaries
according to faraid.
e)Application for sijil faraid at the Shariah Court in summary:
i. Filing of supporting documents including death certificate, identity cards of
beneficiaries, titles deeds of immovable and movable property, bank
statements.
ii. Application is then fixed for mention or hearing within 21 days from receipt
of all relevant papers.

f) If there are no issues, Syariah Court will proceed to divide and

apportion the estate based on faraid.
g)Issuance of Sijil Faraid or Perintah Pembahagian Faraid within 7 days
after division and distribution of estate.
h)Cancellation of Sijil Faraid takes place when:
i. There is a challenge to a person being named as beneficiary.
ii. A person having interest in the estate is not named as beneficiary.
iii.Defects in the Sijil Faraid.

i) Shariah Court will issue directions:

1.To file an application to cancel the Sijil Faraid.
2.File new application for Sijil Faraid.