Probate

Will

testamentary disposition that manifests the intention of the testator/testatrix as to how hie or her estate shall be distributed upon death

Formalities of a valid will

Wills Act 1959 - must be in writing - in the proper format - must be duly executed by testator/testatrix and witnesses

• will are revocable even if it is expressly stated as irrevocable

• only becomes irrevocable upon the testator’s death

Types of grants

• probate

• Letter of Administrator with will annexed

• Letter of Administration

• Letter of Administration de bonis non

Jurisdiction to grants

• HC

• summary administrator by ARB

• administration by District Land Administrator under SEDA 1955

HC

• s24(f) CJA64’ - jurisdiction to grant the grant of representation lies with civil courts - which is the HC

Apply for summary administration by ARB

s17 Public Trust Corporation Act 1995

• when the value of estate made up wholly of movable property that is below 600k

Apply for distribution by DLA under SEDA 1955

Small Estate Distribution (Amendment) Act 2022 amended

• s3(2) - any estate not exceeding 5 mil in value

• s3(3) - time for computing the value of the deceased’s estate is at the time of filing of application

• s3(4) - property held for deceased as beneficiary must be included - property held by deceased as trustee must be excluded - there cannot be any deduction of debt owed by the deceased for the purpose of computing the value of his estate

• petitioner may apply for summary distribution if the estate consists only of movable property valued less than 600k

• any beneficiary can file a petition for distribution to the relevant State LA office

• petition may be lodged in any state where the deceased’s property is situated

• the power of LA to hear petition will be assumed by the Estate Distribution officer

• obligation imposed on Estate Distribution Officer to serve a copy of notice of petition on the petitioner and the latter is required to serve such copy on all persons named in the petition as beneficiaries or person of interest

• No legal rep allowed - no administration bond required

• s13 - Estate Distribution Officer shall direct the share of any minor beneficiary in any immovable property to be registered in the name of a suitable person as trustee and enter a caveat to protect it

• distribution will be made according to Distribution Act 1958 or Syariah Law for Islamic estate

Grant of probate

where there is valid will and proving executor - executor named in the will who is willing and capable of taking the responsibility to administer the deceased’s estate

How to apply for probate

• s3 PAA & 071r5 - the proving executor may apply via OS supported by affidavit stating particulars of deceased - where he died - beneficiaries and interest of minorities

• s9 PAA - if the will doesn’t contain an attestation clause - Registrar may require further evidence by affidavit of due execution from attesting witness or any person who can show that the signature on the will is the testator’s signature

• r4 - Registrar will inquire into all relevant matters and appoint executor or administrator if all requirements are satisfied and there is no caveat entered upon the estate

what if the testator is insolvent

• executor or administrator shall pay funeral; testamentary and administration expenses first and then pay secured creditors followed by unsecured creditors

What if the proving executor named in the will is a minor?

s20 PAA - may be named as beneficiary but can only grant probate after he turned 18

When does the right of an executor cease?

• s7 PAA

  • survives the testator but dies before taking out probate

  • cited to take out probate but doesn’t appear to citation

  • renounce the probate of will

When representation has been granted to more than one executor or administrator but one of them dies

• s14 PAA - the representation of the estate shall accrue to the surviving E or A

when the executor dies before extracting probate

• s12 PAA - executor of a deceased’s executor can act for the estate of the original testator

• proviso to s12 - the dead executor must have obtained probate before death or the chain of executorship is broken

in cases where two or more persons die and the circumstances is such that it is uncertain which of them survived the other

• s2 - Presumption of Survivorship 1950 - such deaths for all purpose affecting title of property shall be presumed to have occurred in order of seniority - the younger shall be deemed to have survived the elder

LA with will annexed

• valid will showing intention of deceased with regards to the distribution of estate but no proving executor - not willing to act, incapacitated or predeceased the testator

Who will the LA with will annexed be granted to?

• the fittest person to administer the estate under s16 PAA569’

Letter of administration

• where the deceased died intestate or the will is invalid

• any person interested shall do his due diligence to discover the deceased’s estate

• proviso to s30 - any person interested in the residuary estate of deceased may apply for LA - no rank of priority

Procedure to apply for LA

• o71r5 - must file OS + affidavit in the Registry of HC stating that

  • the deceased has died and attach the death certificate to the affidavit

  • state list of beneficiaries and list of assets and liabilities

  • whether any person with prior rights to grant has renounced his right - renunciation by other beneficiaries must be filed in Form 160

  • whether there is any minor in intestacy

• applicant must attend the hearing at HC

• If application for grant made more than 3 years after death of deceased - must state reason of delay in affidavit - o71r5(6)

Who will the LA be granted to?

• court will appoint an administrator to administer the deceased’s estate as per s30 PAA59’

• proviso to s30 PAA - any persons interested in the residuary estate

• crt employ the ‘default beneficiary approach’ - where the claimant would, by default, be benefitted should the deceased died intestate

Extraction of LA

s35 PAA - administrator can only extract LA if he furnishes administration bond in Form 162

• If Muslim estate - need to apply for Sijil Faraid at the Jabatan Agama Islam and furnish it to HC

• distribution will be done in accordance to the Sijil

When is an administration bond needed?

• When there is application for grant of LA with or without will

• value of estate exceeds 50k

Form of security required under administration bond

• 2 sureties who have assets equivalent to the amount of the deceased’s estate

Purpose of administration bond in the form of surety

to act as security for due administration of the deceased’s estate

• unlike grant of probate where executor is named by the testator and would usually be someone who has personal relationship with the testator

• the crt appoint the administrator - requires some form of security to be furnished before the administrator who the court knew nothing of regarding to his character or reliability - can be entrusted with the responsibility to administer the deceased’s estate

• In the event the administrator abscond with the deceased’s estate entrusted to him - the sureties will have to indemnify the beneficiaries of the estate

Can the need for surety be dispensed?

s35(2) - court has discretion to dispense:

• s35(1)(b) - value of estate is below 50k

• s35(4) - administrator is the sole beneficiary

• if all beneficiaries consent to dispense with the administration bond

• where the value of the estate is too high that finding sureties with equivalent value of assets becomes too difficult

Court shall take into account the interest of creditors when deciding whether to dispense the need of sureties

When the beneficiary is a minor

• grant of LA must be made to at least 2 administrators or to Amanah Raya Berhad

• o71r33 - person applying for LA must file an administration oath attested by a commissioner of oath

Maximum number of administrators

s4(1) - 4 person

LA de bonis non

• granted where the probate or LA has been extracted but the executor or administrator became unable to fully administer the estate

Application of LA de bonis non

• o71r5 - person interested shall file OS supported by affidavit stating that the previous administrator has been appointed and has prior right to the grant

• other beneficiaries must renounce their right in Form 160 and this renunciation has to be annexed to the affidavit

• first admin can consent to the 2nd admin becoming the admin

LA pendente lite

where there is a dispute among beneficiaries as to who should be appointed as the administrator and in the meantime - someone brought a legal action against the D’s estate

• beneficiaries can come to consensus to appoint an independent person or body to apply for LA pendente lite - to protect the deceased estate pending litigation btw the beneficiaries

• The Administrator pendente lite will manage the estate and defend the suit brought by the third party until the dispute between beneficiaries is resolved

Partial intestacy

• where the will is valid but does not mention all of the deceased’s estate

• s16 PAA - beneficiaries advised to apply for LA with will annexed

• o71r5(2) - executor under the will must renounce his right to executorship in Form 160 + affidavit - if not he has priority to the grant

• property covered in the will shall be distributed in accordance with the terms of the will - those not covered - Distribution Act 1958

Mutual Wills

where two parties make a will with identical terms with the intention of benefitting a common beneficiary and there is an agreement to the effect the mutual will cannot be revoked unless consented by the other party

[Stone v Hoskins] - wife is entitled to revoke her mutual will but husband may claim damages for breach of contract

• equitable principles apply when there is a valid mutual will in place

mutual wills x mirror will - no agreement to bind the testators

How to prove that there is a mutual will?

[Hiroto Watanabe v Law Yen Yen]

• it must be established that there is an irrevocable agreement to distribute the estates in a particular way at the time the mutual wills were made

• the agreement may be in oral or writing - be incorporated in the will or proved by extraneous evidence and established by clear and satisfactory evidence on the balance of probabilities

• A common intention, expectation or desire will not suffice

Facts

husband and wife made identical wills leaving property to each other - divorced - wife remarried - died before ex-husband - wife made a fresh will without knowledge or consent of ex-husband leaving all property to children - children took out probate - ex-husband filed an action to contest validity of fresh will

Held

wife entitled to revoke her mutual will but the executor of the wife holds the properties on trust for the husband following the terms of the mutual will

Donatio Mortis Causa

• gift that donor makes when contemplating the prospect of his imminent, though not necessarily certain, death

• revocable - will be revert to donor if donor recovers - unlike inter vivos gift

• DMC is not made by will - unlike testamentary gift

Inter vivos gift

voluntary and gratuitous transfer of property while the donor is still alive and made not in the expectation of death - irrevocable

to create a valid DMC

• it must be made in contemplation of death

• must be conditional on death

• must be delivery of the subject matter of the gift

• subject matter must be capable of passing

Distribution of estate

Distribution Act 1958

• s6 DA

  • children always get more

    Eg: children and parent/ spouse - children get 2/3

• movable property - mere delivery and acknowledge of receipt

• immovable property - property must first be transmitted to the exe/admin - then they vest the property in the names of beneficiaries after obtaining a vesting order from court

• s60 - Administrator may not dispose the property without court’s permission

child and parent under DA1958

Stepchild

• [Pang Chuan Cheong v Oh] - a stepchild isn’t an issue of the deceased unless he has been legally adopted

Unborn child

• s5 DA - conceived in the womb and has subsequently been born alive shall be regarded as a child to the deceased

Illegitimate child

• [Tan Kah Fatt v Tan] - DA adopted the principle of parity - a person was potentially a beneficiary so long as some lineal blood connection with the deceased could be established - widens scope for child who can inherit

• adopted in [Lionel Lau v Datuk Seri Panglima]

Parent

• the natural mother or father of a child or lawful mother or father under the Adoption Act

Caveat - s33 PAA 1959

• a legal notice in Form 164

any person having or claiming to have any interest in the deceased’s estate may enter a general caveat at any time after the death of the deceased and before representation has been granted

purpose of caveat

• to ensure that no grant of probate or representation is made without notice to the caveator

utility or effect of a caveat

• allows beneficiary who is worried that his interest may be compromised to enter a caveat

• turns a non-contentious probate action into a contentious one

Who can enter a caveat under s33?

• beneficiary who is challenging the validity of the will and wishes to prevent the granting of probate to the executor in the will

• creditor who is worried that the outstanding debt owed by the deceased to him may not be paid by the estate of deceased

Procedure to enter caveat - o71 ROC

1. o71r37 - applicant file in Form 164 with HC Registry - no need to serve a copy to any party

2. Registrar - forward a copy of the caveat - give notice in Form 158 to the Registrar of the Principal Registry- after a caveat is entered

3. The latter - maintain an index of caveats entered - upon receiving a notice of an application for grant - cause the index to be searched - notify the appropriate Registrar or Land Office in the event of a caveat having been entered against the sealing of a grant

4. The Registrar must not make any grant - knowledge of an effective caveat entered- unless - caveat filed on the date the grant is given - a caveat has no effect on the day it is filed.

5. In any event where representation is granted and a caveat has been entered against the estate - the extraction of grant or LA would be stayed until the caveat is removed

Removal of caveat

1. o71r37(8) - the person seeking to remove the caveat - issue a warning in Form 165 - state his interest and require caveator to give particulars of any contrary interest in the estate

2. must serve a copy of the Form to caveator and Registrar of Principal Registry

3. o71r37(10) - Once warning served - caveator must enter appearance in Form 166 within 8 days - or he can also withdraw the caveat without entering appearance by giving notice at the Registry and to the caveatee

4. 071r37(9) - If he failed to enter appearance within the time limit and did not withdraw the caveat - the applicant may file an affidavit showing that warning was duly served on the caveator and he received no notice of application for direction

5. 071r37(12) -The caveat ceases to have effect thereafter

After entering appearance

• he must show either that he has contrary interest or no contrary interest

With contrary interest - contesting the validity of the will or interest under intestacy

• o71r37(10) - must enter appearance within 8 days in Form 166

• (14) - once appearance entered - the matter shall be deemed to be contested, and it will be referred to a judge who may dispose of the issue summarily or direct that o72 applies

Without contrary interest - wishing to show case against the making of grant to caveatee

Eg: both the caveator and the caveatee are beneficiaries of the estate - both want to apply to be administrator

• o71r37(11) - caveator can issue and serve a notice of application for directions within 8 days of service of warning by the caveatee

When would a caveat cease to be effective?

• o71r37(5) - at the expiry of 6 months from the date on which it is entered unless renewed

• o71r37(9) - voluntary withdrawal by giving notice to Registrar and caveatee

• o71r37(12) - when the ceveator defaults on appearance and there is no withdrawal after 8 days lapse

Citation

• notice issued to call a person to appear in court and respond to the averments set out in the citation

Purpose of a citation

gives notice of the proceedings to person whose interest are or may be affected by them so that they are given opportunity to appear in court and participate in the proceedings if they wish to do so

Procedure to issue a citation

1. o71r41

2. Every will must be filed in the Registry before citation can be issued unless the will is not in the citor’s possession

3. must be issued from Registry in Form 167 and every averment in the citation must be verified by affidavit sworn by the citor

4. A caveat must be entered prior to issuing a citation

5. Citation must be served personally on the citee unless directed otherwise

6. After service of citation - citee must enter appearance in Form 166 within 8 days of service

o71r42(1)

• citation to accept or refuse a grant

• where a person had prior right to the grant of probate or LA delayed or declined to take out grant but will not renounce his right

Eg: administrator appointed but does not act to extract LA - beneficiary may issue a citation to him

If citee defaulted in appearance to accept or refuse a grant

• o71r42(5)(a) - citor may apply to Registrar for an order to grant representation to himself

o71r42(2)

• citation to take out grant of probate

• where an executor appointed had intermeddled with the testator’s estate without taking out the probate within 6 months of deceased’s death - beneficiary may cite him to take out the grant of probate or to show cause why he should not be ordered to take grant

If citee failed to enter appearance to take out grant or probate

• o71r42(5)© - citor may apply to Registrar by NOA for an order requiring the citee to take grant within specified time or for a grant of rep to himself

proviso o71r41(3)

no citation to take a grant must be issued while proceedings as to the validity of the will are pending

o71r42(1)

• citation to propound (to produce) a will

• where a person genuinely believes that a will is not proved thus invalid and he himself is of interest under an earlier or subsequent will - may cite executor and beneficiaries to propound the will

If citee failed to enter appearance to propound a will

• citor may apply by NOA for an order for a grant of rep to himself as if the will were invalid

Constructive renunciation

• s9 PAA - any person claiming an interest in the deceased’s estate can issue a citation and serve it personally to the citee calling him to accept or renounce his right to representation

• the citee has 8 days to enter appearance and proceed to obtain grant

• if defaults in appearance - shall be deemed to have renounced his right

• if enters appearance but does not apply for rep - citor may apply for an order that the citee applies for grant within a time limit, failing which he shall be deemed to have renounced his right

Procedure to challenge validity of will

o72

1. apply for issuance of writ and serve personally or by AR post on Defendant

2. D must enter appearance within 14 days upon service of writ

3. D must file affidavit as to whether he has knowledge of the deceased’s testamentary script

4. affidavit must be filed together with the testamentary script within 14 days of entry of appearance by D or before action is set down for trial

5. if D defaults appearance - P shall proceed as if D had entered appearance - no JID

6. P must serve SOC on D within 6 weeks after entry of appearance or within 14 days after P filed affidavit

7. pleadings must state the nature of disputes

8. after close of pleadings - crt may direct parties to attend a PTCM - failure to attend will lead to the case being dismissed or struck out

Where the validity of a will is challenged

• [Lee Teck Seng v Gan] - the burden of proving the testamentary capacity and due execution, and to dispel any suspicious circumstances that may surround the making of the will, lies on the propounder of the will

Testamentary capacity

[Tho Yow Pew v Chua]

• understand he is giving property to the beneficiaries

• understand and recollect the extent of his property, both of those he is including in or excluding from his will

• extremely low threshold - there shall be insane delusion at the time of the making of the will to vitiate one’s testamentary capacity

Due Execution

• non-compliance to Wills Act 1959

• in writing - signed in presence of 2 witnesses

• gift to an attesting witness would be void

• executor is a competent witness to prove validity as long as he is not a beneficiary

• [Karn Woon Lin v Cheah] - thumbprint is just another mode of attestation

Suspicious circumstances

[Thiang v Yee Bee Eng]

• fairness of the contents is the prerogative of the testator - it is his privilege to decide as to whom he wish to bequeath his property - unfairness not sufficient ground to set aside will

• [Tho Yow Pew]- must relate to the circumstances surrounding the making of the will not the testamentary capacity of the testator

• [Foo Sook Lin v Foo] - undue influence cannot be presumed - must be actual undue influence - some kind of pressure or influence to coerce the testator into doing that which he does not desire to do

Grant has been taken out in one of the Commonwealth countries and the estate of deceased has some assets in Msia in which the exec/admin seeks to administer in Msia

• By application of exec/admin, the grant of probate/ LA can be resealed with the seal of HC in Msia and the said grant will have the same effect as if it was granted in Msia

• LA ONLY — Before resealing - the administrator shall give administration bond as per s35