PROBATE ESTATE DUTY PAYABLE + TYPES OF LEGACY

ESTATE DUTY PAYABLE

8. The estate duty payable
➔ Malaysia does not have any form of death tax, estate duty or inheritance tax.
➔ There was an estate duty in place until 1 Nov 1991 when it was abolished i.e. there
is no final tax on the accumulated wealth of a deceased individual.

8.1 Note but – Income tax could be payable

➔ • The executor / administrator has a duty to notify the Inland Revenue Board (IRB)
– S.74(3) Income Tax Act 1967
➔ The IRB must conduct posthumous assessment or additional assessment (relating
to the deceased individual or in respect of any disposal of real property by the
deceased individual) within 3 years after the date of death was communicated to
IRB

Kerajaan Malaysia v. Yong Siew Choon [2005] FC

- The person assessable and chargeable to tax in the case of the estate of a
deceased person is his executor.
- Proceedings can therefore be commenced against an executor for the recovery of
tax due and payable.

TYPES OF LEGACY
9.1 Specific Legacy
➔ A gift of a specific asset such as an art work, jewelry, property, stocks or shares.

9.2 Pecuniary Legacy

➔ A gift of a specific sum of money. (e.g.RM50,000/- in the will)

9.2.1 Definition of "pecuniary legacy" - S2 PAA 1959

➢ includes an annuity, a general legacy, a demonstrative legacy so far as it is not
discharged out of the designated property, and any general direction by a
testator for the payment of money, including all death duties free from which any
devise, bequest or payment is made to take effect

9.2.2 Wherein a pecuniary legacy given priority - S69(3) PAA 1959

➢ Where the estate of a deceased person is solvent his estate shall, the distribution
of the estate will be subject to rules of court, the provisions in PAA 1959 as to
charges on property of the deceased, and to the provisions, if any, contained in his
will, be applicable towards the discharge of the funeral, testamentary and
administration expenses, debts and liabilities payable there out in the order
mentioned in Part II of the First Schedule.

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PROBATE ESTATE DUTY PAYABLE + TYPES OF LEGACY

9.3 Residuary Bequest

➔ the remaining estate after deducting all debts, bills and taxes, as well as after
distributing all the other types of gifts accordingly.
➔ A residuary gift can be bequeathed to a specific person or more than 1 person, or
to a class of people, in any proportion as preferred by the testator.

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PROBATE MUTUAL WILLS

Hiroto Watanabe v. Law Yen Yen & Anor [2012] HC

Facts
- The plaintiff in this case is the step-father of the defendants.
- The defendants’ mother (‘the deceased’) had married the plaintiff, a Japanese
national,
- Both the plaintiff and the deceased made almost identical wills (‘the 2002 wills’)
wherein they declared, reciprocally, that their two apartments (‘the Seri Duta
properties’) would, upon their demise, be given to the surviving spouse.
- However, in February 2007, the deceased executed another will (‘the new will’)
whereby she stated that upon her death all her properties would revert to the
defendants.
- It thus transpired that, upon the death of the deceased, the defendants obtained a
Grant of Probate to administer the estate of the deceased.
- The plaintiff subsequently entered a citation in the probate proceedings to prevent
the defendants from administering the estate of the deceased.

Held
- It is insufficient for a husband and wife to merely have corresponding wills or mirror
wills as they may carry no obligation to be irrevocable
- It is not uncommon for husbands and wives to make identical wills, sometimes
referred to as corresponding or mirror wills, containing reciprocal provisions as to the
distribution of their estates in the event of their death.
- They may wrongly assume that with such wills in place, there is in existence a
mutual promise which each spouse is not entitled to renege or revoke.
- The term “mutual wills” is used to describe joint or separate wills made as a
result of an agreement between the parties to create irrevocable interests in
favour of ascertainable beneficiaries.
- What is required to prove mutual wills is that: (a) there was a prior agreement
by the testators to make mutual wills intending their agreement to become
irrevocable on the death of the first to die; and (b) the making of the mutual
will (Olins v. Walters [2008]; Charles v. Fraser [2010]; Fry v. Densham-Smith
[2010]).
- Shortly stated, it must be established that there was an irrevocable agreement
to distribute the estates in a particular way at the time of the making of the
mutual wills.
- It is trite law that when one acts on the faith of an agreement to make mutual wills,
equitable obligations will arise to prevent the offending party from acting unfairly.
- It was affirmed that the plaintiff and the deceased did make mutual wills as the 2002
wills were made at the same time and in almost exactly the same terms.
- The deceased’s concern about the future of herself and her children and the promise
she had given in front of the witnesses to the 2002 wills to never change the wills
clearly showed that she intended the 2002 wills to be irrevocable.
- The execution of the new will was done without notice to the plaintiff and
certainly without his knowledge and consent.
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PROBATE MUTUAL WILLS

- The deceased had thus reneged on her promise to the plaintiff and this was
clearly a breach of her promise.
- In the end, it was not the plaintiff but the deceased who broke the promise.
- at the outset, that the promise made in the mutual wills cannot be lightly
disregarded.
- Considering the jurisprudence regarding this doctrine of mutual wills, it is trite
that a court of equity will not permit any transfer of property which is
inconsistent with a legally binding obligation.
- It is also trite that equity attaches to the principle of irrevocability in the
doctrine of mutual wills which comes into operation when the first to die does
so without revoking his or her will.
- I am also inclined to hold, as the cases suggest, that the principles of equity
are equally applicable where the survivor has acted to his detriment or has
suffered serious prejudice when acting in full faith and reliance on the
agreement or understanding reached between the testators at the time of
execution of the mutual wills.
- This will be especially apparent in the situation where the first to die had acted
unilaterally and without notice or worse still, had acted in a secret or clandestine
fashion in revoking the will entered into on an irrevocable basis.
- In my judgment, this was precisely the case in the instant action when the
deceased acted unconscionably in revoking her 2002 will secretly to the
detriment and prejudice of the plaintiff.
- It would be unjust and unconscionable to permit the deceased and now her
estate and her children to profit from her breach to the detriment and
prejudice of the plaintiff.
- The court would thus hold that the deceased’s last will dated 16 February 2007
is valid and enforceable except that the executors, who were the defendants in
this case, would hold the Seri Duta properties on trust for the plaintiff in
accordance with the terms of the 2002 wills.

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PROBATE TYPES OF WILLS: MUTUAL WILLS, JOINT WILLS, CONDITIONAL WILLS & PRIVILEGED WILLS

Mutual Wills Joint Wills Conditional Wills Privileged Wills

➔ These are two Wills that are the same by two ❖ Where one Will is ➢ The Will is only ★ This is only
Testators who are in agreement that: executed by 2 or deemed to be applicable to
more persons effective/ certain types
➔ The Wills are not to be revoked; operational if the of testators
❖ It can be a Mutual condition that has i.e. soldiers
➔ Upon the death of one of the testators, the Will or a Separate been specified is in military
property shall be distributed to the other. Will. If it is a satisfied. service,
Separate Will, then seamen,
➔ Usually an arrangement among spouses/life upon the death of ➢ Whether a Will is those in the
partners or other such relationship of a similar one testator, probate conditional or not naval or
nature may be granted. will depend on the marine
nature of the services
➔ They are essentially an agreement between ❖ A joint testator has words used in the (S26(1) PAA
them as to the manner of the distribution of their the right to revoke Will and this is 1959)
assets. his portion/terms of determined by the
the Will. courts based on ★ Such Wills
Revocation of Mutual Wills the facts and can be made
Where the other spouse is still alive ❖ This can be done circumstances of in writing or
➔ If the parties are alive and one party decides to without the consent each case verbally and
revoke their mutual Will and make a new Will, of the co-testator. it is not
then the law states that this is a right the ➢ However, a Will is necessary to
revoking party is entitled to. not deemed to be have the
a conditional Will if attestation of
➔ However, the case of Stone v. Hoskins states it refers to the 2 witnesses
that the other party may be able to claim for satisfaction of
damages for breach of contract some future event

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PROBATE TYPES OF WILLS: MUTUAL WILLS, JOINT WILLS, CONDITIONAL WILLS & PRIVILEGED WILLS

that may or may

➔ Re Hobley – this also means that the other not occur as set
party can revoke his own mutual Will and make out in the case of
a new one. Re Vines

Where the other spouse is dead

➔ If one party is already dead, then the surviving
party is entitled to revoke the mutual Will

➔ It may also automatically be revoked if the

surviving party remarries

➔ the children of her marriage cannot enforce the

original agreement, as they were not privy to the
contract between the W and H

➔ They may be able to invoke equitable principles

and ask that the property of the deceased is
held on constructive trust for the children as set
out in the case of Dufour v.
Pereira

- Hiroto Watanabe v. Law Yen Yen & Anor

[2012]

2
PROBATE GRANT OF PROBATE, GRANT OF LA, GRANT OF LA WITH WILL ANNEXED, DE BONIS NON, PENDENTE LITE

Grant of Probate Grant of Letters of Grant of LA with Grant of LA with Will Grant of La Pendente Lite
Administration Will Annexed Annexed de Bonis
Non/ LA de Bonis Non

DEFINITION

➔ Where ❖ Where S16 PAA 1959 ★ The LA can be ● Such a grant shall be
someone dies someone dies ➢ Where there is granted where the given when it is
leaving behind without a will but for executor has died essential to the
a will leaving some reason, before obtaining the preservation and the
behind a will there is no grant of probate or protection/ integrity of
➔ Grant of executor. dies after obtaining the estate of the DE.
Representation ❖ Grant of the grant of probate
= Grant of Representation (a) The will does but before fully S19 PAA 1959
Probate. = Grant of not appoint an carrying out the ● Pending any probate
Letters of executor instructions of the action, letters of
➔ Probate will be Administration TOR in the will or administration may be
granted to the (b) The executor the administrator granted to such person
Executor(s) ❖ LA is granted who is died before fully as the Court may
appointed in also in appointed is administering the appoint, limited so that
the will (S3(1) situations incapable of estate of the the administrator shall
PAA 1959) where a will is fulfilling his role deceased (S16(d) not be empowered to
declared to be / have PAA 1959) distribute the estate,
➔ Max 4 invalid renounced and shall be subject to
Executors (4 such control by, and
persons for the ❖ Any interested (c) The executor direction of, the Court,
same property) party can apply dies before the as the Court deems fit;
(S4(1) PAA to be the testator and subject to that

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PROBATE GRANT OF PROBATE, GRANT OF LA, GRANT OF LA WITH WILL ANNEXED, DE BONIS NON, PENDENTE LITE

1959) administrator limitation the

of the estate of administrator so
the deceased appointed shall have
(S30 PAA all the rights and
1959) powers of a general
administrator.

PERSON WHO WILL BE GRANTED

➔ The person(s) ❖ The person(s) LA with the will ★ The subsequent LA ● The person to whom
to whom the to whom the annexed will be will be granted only such letters of
grant is given LA is given granted to the to administer the administration are given
shall be known shall be known following (in order): unadministered part is required to take care
as the as the I. Universal/residu of the original of the estate of the
Executor(s) of Administrators ary legatee deceased’s estate deceased and deal with
the Estate of of the Estate of any urgent business
the Deceased the Deceased II. A personal ★ Where Probate/LA affairs until the dispute
who must who must representative with Will Annexed and litigation is
distribute the distribute the of the has been extracted completed.
estate in estate in universal/residu and the E/A dies or
accordance accordance ary legatee who is incapacitated, the ● This can be seen to be
with the with the has died appointment of an done in the case of
instructions Distribution administrator of LA Amanah Raya Bhd
set out in the Act 1958 III. Such persons with Will Annexed (suing as administrator
will who are de Bonis Non is for the estate of
beneficiaries governed by S16 Kantilal Prabhulal,
under the will PAA 1959 (The deceased) v Jigarlal
who would have Estate of Ngah Kantilal Doshi & Ors,

2
PROBATE GRANT OF PROBATE, GRANT OF LA, GRANT OF LA WITH WILL ANNEXED, DE BONIS NON, PENDENTE LITE

been entitled to Ken Lock). where it was held that

the same if the the court has the power
testator had ★ Where LA has been under S19 PAA 1959 to
died intestate extracted, grant letters of
appointment of administration pendente
IV. A legatee who administrator of LA lite to the most
has beneficial de Bonis Non is appropriate person,
interest governed by s.30 usually is someone
PAA 1959. unconnected to the
V. Creditors of the person.
DE ★ On the death of an
Executor/
Administrator
administration may
be granted for any
estate not fully
administered.
(S14(2) PAA 1959)

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PROBATE ADMINISTRATION & DISTRIBUTION OF SMALL ESTATE

DEFINITION

Definition of Small Estate - S. 3 (2) Small Estates Distribution Act 1955 (SEDA 1955)
➢ small estates are those which do not exceed a value of RM 2 million at the time of death
★ Value of the property t the time of death, disregard liabilities

ESTATES CONSIST OF PARTLY/ WHOLLY IMMOVABLE ASSETS

Option 1: Apply To Court *Option 2: Amanah Raya Berhad *Option 3: District Land Administrator (DLA)
for LA/ Grant of Probate

- Can apply to court for
LA/ grant of probate to
distribute the assets
- then distribute
according to the S. 8 SEDA 1955
instructions in the will/
distribute according to
DA 1968
- The HC has
jurisdiction over small
estates where there is
a Will (testacy) (S5
SEDA 1955).
- If there is immovable assets in
the small estate
- No real property = immovable
assets
➢ If the estate consists either
wholly or partly of immovable
assets up to RM 2 million
➢ ARB can apply to the Small
Estates Distribution Office to
be appointed as the
Administrator to obtain a
Distribution Order in order to
allow them to administer the
- When moveable assets more than RM600,000/ there
is immovable assets
s.3(3) SEDA 1955
➢ Value of the property shall be deemed to be at the
date of filing of an application for probate or LA.
s.3(4) SEDA 1955
➢ provides that in calculating the value of the property
➢ there is no deduction for debts of deceased;
➢ there is no inclusion of property held by deceased as
trustee;
➢ it includes the property held for the deceased as
beneficiary;
➢ it includes any land held in name of the deceased
unless the deceased held it as a trustee or as a

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PROBATE ADMINISTRATION & DISTRIBUTION OF SMALL ESTATE

Estate guardian.

S. 4 (2) SEDA 1995

➢ The DLA can summarily administer and distribute
the whole estate of the deceased where the total
value of the estate does not exceed RM 2 million

Application for distribution - s.8(1) SEDA 1955

➢ Any person interested in the estate as beneficiary, or a
creditor, or a purchaser, may lodge an application with
the DLA in the district where immovable property (land
or house) is situated.

s.13(1) SEDA 1955

- At the conclusion of the hearing, the DLA shall order
payments for estate duty, funeral expenses, debts of
the deceased and fees to be paid to any person and
may direct the whole or such part of the estate to be
sold and the expenses, debts, fees and duty to be
paid from the proceeds of the sale and the residue of
the estate to be distributed to the beneficiaries
according to the S6 Distribution Act 1958 .

ESTATES CONSIST PURELY OF MOVABLE ASSETS

Option 1: Apply to Court *Option 2: Amanah Raya Berhad

for LA/ Probate

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PROBATE ADMINISTRATION & DISTRIBUTION OF SMALL ESTATE

- Can apply to court for - Only movable assets not more than RM600,000
LA/ grant of probate to
distribute the assets S. 17 (1) Public Trustees Cooperation Act 1995 (PTCA 1995)
➢ ARB can summarily administer moveable assets up to RM600,000.
- then distribute
according to the ➢ Summarily distribute (very little formalities)
instructions in the will/
distribute according to ★ ARB also provides services to file the necessary papers in the High Court for the application of
DA 1968 grants of representation so that they can administer estates that fall outside their jurisdiction

- The HC has ★ Once the grant is given to them, they then step into the shoes of the
jurisdiction over small Executor or Administrator of the estate of the deceased
estates where there is
a Will (testacy) (S5 s.8A SEDA 1955
SEDA 1955). - ARB shall deliver to the District Land Administrator (DLA) any document relating to the property
to determine whether the estate is or is not a small estate.

- The E must renounce his rights/ No person has applied for grant of representation..

- ARB must undertake to administer the T’s estate and a declaration of undertaking must be filed
in court.

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PROBATE SPECIAL PROCEDURES: CAVEATS, CITATIONS, RENUNCIATIONS, RESEALING OF GRANTS

8. Caveats 9. Citations 10. Renunciations 11. Resealing of Grants

8.1 PURPOSE 9.2 DEFINITION 10.1 DEFINITION 11.1 DEFINITION

O.71 r.37(1) ROC 2012 ❖ This is a notice that is issued ● This means that ★ Generally, upon death of a
➔ The purpose of a by the court upon an anyone who has a person, his movable assets (e.g.
caveat is to application by the Citor. right to bank acc, shares/ stocks, motor
ensure that a administration or vehicle) will be distributed
grant of ❖ It is essentially a show cause grant of probate according to the TOR’s domicile
representation in notice to the citee. can renounce
relation to the his/her rights to it. ★ On the other hand, his
estate of the immovable properties (e.g. land,
deceased is not ● It does not mean real estate) will be governed by
made without any that he/she is the law of the country where the
notice to the renouncing any prop is situated
caveator benefits that
he/she may be ★ A person died domicile
8.1.1 Definition entitled to. outside Malaysia with
➔ A caveat is a property located in both
warning or notice ● Any such Malaysia and overseas
of interest in the renunciations
estate of the must be ★ The executor/ administrator of
deceased in the contained in the the DE will have to apply for the
context of a grant Affidavit Msian court to reseal the grant
of representation. supporting an of probate/ LA obtained in
Application for commonwealth country prior to
Probate/Letters of dealing with the property in Msia
Administration.

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PROBATE SPECIAL PROCEDURES: CAVEATS, CITATIONS, RENUNCIATIONS, RESEALING OF GRANTS

● It is advisable for
such
renunciations to
be filed separately
as a document

● There are 2 types

of renunciations,
express and
implied/
constructive

8.2 RIGHT TO ENTER 9.2 POWER OF COURT 10.2 EXPRESS 11.2 SMALL ESTATE
CAVEAT RENUNCIATIONS

S. 33 PAA 1959 S. 40 Probate and Administration S. 8(1) PAA 1959 S. 6 Small Estates Distribution Act
➔ any person with Act 1959 (PAA 1959) ● any person who is 1955 (SEDA 1955)
an interest in the ❖ the court is empowered to entitled to ★ The High Court has the power
estate of the summon the Executor(s) to representation to reseal any grant of
deceased, prove or renounce probate may expressly representation that has been
including a of the Will and do any other renounce his made outside of Malaysia with
creditor, may at things right to such regard to the estate of a
any time after the representation deceased person which is
death of the categorised as a small estate
deceased and
before
representation *** BELOW 3 PURPOSES

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PROBATE SPECIAL PROCEDURES: CAVEATS, CITATIONS, RENUNCIATIONS, RESEALING OF GRANTS

has been granted

to the estate of the
deceased may
enter a general
caveat in relation
to the estate.

8.3 FILING OF 9.3 COMPULSION TO ACCEPT 10.2.1 EXPRESS 11.3 POWERS OF COURT TO
CAVEAT OR REFUSE A GRANT OF RENUNCIATIONS: RE-SEAL
REPRESENTATION ORALLY/ IN WRITING

O.71 r.37(3) ROC 2012 O. 71 r. 42(1) ROC 2012
➔ The caveat shall ❖ A citation to either accept or
be filed in refuse a grant of
accordance with representation can be issued
Form 164 in situations where a person
who would be entitled to a
grant of representation
renounces his right
- Or does not appear to be
desirous to take out grant of
representation
S. 8(2) PAA 1959 S. 52 PAA 1959
● this can be done ★ any Probate or LA that has been
orally or in granted in any part of the
writing by Commonwealth can be
affirming an resealed with the seal of the
affidavit before a Malaysian High Court and
Commissioner for shall have the same force and
Oaths effect and shall operate in the
same way as if the grant was
made by the Malaysian HC.

8.4 DURATION & 9.3.1 NO APPEARANCE FOR 10.2.2 FORM 11.4 APPLICATION TO BRITISH
FURTHER CAVEATS CITATION UNDER PARA (1) COURTS IN FOREIGN COUNTRIES

O71 r37(5) ROC 2012 O. 71 r.42(5)(a) ROC 2012 O. 71 r. 31(4) ROC S. 53 PAA 1959

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PROBATE SPECIAL PROCEDURES: CAVEATS, CITATIONS, RENUNCIATIONS, RESEALING OF GRANTS

➔ Once filed, the ❖ If the time limit for the entry of 2012 ★ Any probate or LA granted by a
caveat shall appearance expires and the ● The Form for British Court in a foreign
remain in force cite fails to enter such express country may be sealed in
for (6) months. appearance, the citor may renunciations can Malaysia
apply to the Registrar for an be found in Form
➔ During this time, order that grant of 160
further caveats representation be given to
can be placed him/her

8.5 WARNING FOR 9.4 TAKE OUT GRANT OF 10.3 CONSTRUCTIVE 11.5 SECURITY ON RE-SEALING LA
REMOVAL OF PROBATE BY AN EXECUTOR DE RENUNCIATIONS
CAVEAT SON TORT

O71 r37(8) ROC 2012 O. 71 r. 42(3) ROC 2012 S. 9(1) PAA 1959 S. 55 PAA 1959
➔ The caveatee ❖ A beneficiary to the estate of ● any person who is ★ security must be given by way
interested person a Testator may issue a claiming any of a bond for the purposes of
may issue a citation on an Executor who interest in the resealing an LA.
warning as set out has intermeddled with the estate of the
in Form 165 ROC estate of the Testator to show Deceased,
to the Caveator cause as to why he should including any
that an not be ordered to take out a creditor may
application for grant of probate issue a Citation
removal will be
made. ❖ No citation to take out a grant ● This is to be
of probate can be issued served
➔ Here, the where there are ongoing personally on
caveatee must proceedings to determine the citee,
state his/her the validity of a Will. compelling

4
PROBATE SPECIAL PROCEDURES: CAVEATS, CITATIONS, RENUNCIATIONS, RESEALING OF GRANTS

interest and ask him/her to accept

the caveator to or renounce
give details of his/her right to
any contrary representation
interest in the
estate of the ***Citation in Form 167
deceased. .

➔ Such a warning
must be served
on the caveator
and the Registrar.

8.5.1 CAVEAT CEASES 9.4.1 NO APPEARANCE FOR 10.3.1 APPEARANCE 11.6 SECURITY FOR CREDITORS
EFFECT CITATION UNDER PARA (3) IN MALAYSIA

➔ A Caveat may O. 71 r. 42(5)(c) ROC 2012 S. 9(2) PAA 1959 S. 56 PAA 1959
cease to have ❖ If the time limit for the entry of ● The citee must ★ Before a grant of probate or LA
effect in the appearance expires and the enter is resealed, if the deceased
following cases: cite fails to enter appearance to was carrying on some kind of
appearance, the citor may the citation business or resided in
O.71 r.37(9) ROC 2012 put in a Notice of Malaysia within 12 months of
- The Application for an order ● If the Citee does his death, the court may ask
Caveator compelling the citee to take not enter for security to be given for the
can out the grant of appearance, payment of debts due to any
withdraw representation within a he/she will be creditors residing in Malaysia
the caveat specific time or for the grant deemed to have upon the application of a
that he has to be given to the citor or renounced creditor

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PROBATE SPECIAL PROCEDURES: CAVEATS, CITATIONS, RENUNCIATIONS, RESEALING OF GRANTS

lodged at some other appropriate his/her right.

any time by person.
giving ● If the Citee enters
notice the appearance but
Registry fails to proceed
and serving to obtain the
a copy on grant of
the representation,
Registrar the citor may
apply to court for
O.71 r.37(12) ROC 2012 an order to
- The compel the cite
Caveatee to apply for a
may file an grant within a
affidavit specified time
showing that limit.
the warning
was served ● If the Citee fails
on the to do so, he/she
caveator but shall be deemed
there has to have
been no renounced
response his/her right to
representation

***Such appearance
must be in accordance
with Form 166.

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PROBATE SPECIAL PROCEDURES: CAVEATS, CITATIONS, RENUNCIATIONS, RESEALING OF GRANTS

8.5.2 APPEARANCE + 9.5 PROPOUND OR PROVE 10.3.2 NOTICE OF 11.6.1 NOTICE IN WRITING
CONTRARY INTEREST THAT A WILL IS VALID HEARING

➔ Upon an O. 71 r. 43(1) ROC 2012 S. 9(3) PAA 1959 S56(2) PAA 1959
appearance ❖ A citation under this category ● If the court is ★ Such creditor can give notice
being entered in shall be directed to the satisfied that in writing to the Registrar,
answer to the executor(s) who are named anyone who is requesting that he/she be
warning of a in the Will and to all entitled to the notified of any application for
caveat, the matter interested persons. representation the sealing of the grant of
shall be deemed has already been representation.
to be contested ❖ Such a citation can be personally
and the expenses issued in situations where a served with the ★ No grant shall be sealed b4
of entry of such citor has a contrary interest notice of hearing expiration of 7 days after
caveat and the to that of the Executor(s) or for the grant of service on creditor notice in
warning thereof other such interested parties representation writing of such application
shall be and that person
considered as does not appear
costs in the cause. or does not file
(O.71 r.37(14) any objection,
ROC 2012) then he/she will
be deemed to
➔ Usually this means have renounced
that the caveator is his/her right to
contesting the representation
validity of the will
or any interest in
cases of intestacy

O.71 r.37(10) ROC 2012

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PROBATE SPECIAL PROCEDURES: CAVEATS, CITATIONS, RENUNCIATIONS, RESEALING OF GRANTS

➔ Caveator with
contrary interest

➔ Once the
Caveatee has
served the
warning, then the
caveator has 8
days, including
the day of
service, to enter
appearance in
accordance with
Form 166.

➔ This must be
served on the
Caveatee

8.5.3 NO CONTRARY 9.5.1 NO APPEARANCE TO 10.4 EFFECT OF 11.7 PROCEDURE FOR

INTEREST PROPOUND A WILL RENUNCIATION RESEALING

➔ The grounds is to O. 71 r.43(2) ROC 2012 S10 PAA 1959 O. 71 r.5(1) ROC 2012
make a case to ❖ If the time limit for the entry of ➢ The renunciation, ★ Application to reseal is to be
support the appearance expires and the shall preclude made by Originating
the person so Summons supported by an
argument that the cite fails to enter
affidavit, giving all the
grant of appearance, or if no person renouncing from
information required in Form
representation who has appeared proceeds applying 159 and any other information /

8
PROBATE SPECIAL PROCEDURES: CAVEATS, CITATIONS, RENUNCIATIONS, RESEALING OF GRANTS

should not be with reasonable diligence to for docs that the Registrar may
given to the propound the will, then the representation require
caveatee citor may put in a Notice of provided that the
O.71 r.5(3) ROC 2012
Application for an order for a Court may at any
★ If the deceased died domiciled
O. 71 r.37(11) ROC 2012 grant of representation as if time allow the outside Malaysia, the
➔ Caveator with no the Will is invalid. person so originating summons must state
contrary interest, renouncing to where he died domiciled
but wishes to withdraw his
show cause renunciation for O.71 r.5(6) ROC 2012
the purpose of ★ If the application for grant of
representation is made for the
➔ In such cases, the taking a grant, if it
first time after 3 years of the
caveator must is shown that the death of the deceased, the
enter appearance withdrawal is for reasons for the delay must be
within 8 days of the benefit of the set out in the affidavit
the service of the estate or of those
warning by the interested under O.71 r.7(2) ROC 2012
caveatee the will or ★ the will must be an exhibit to
the affidavit. If it is not in
intestacy.
English then it must be
translated which is certified by
a Court interpreter or verified
by a person who is qualified to
translate it

8.5.4 NO 9.6 PROCEDURE FOR ISSUANCE 11.7.1 GRANTS WHR DE DIED

APPEARANCE OF CITATION DOMICILED OUTSIDE MSIA

O.71 r.37(12) ROC 2012 O.71 r. 41(1) ROC 2012 O.71 r.25 ROC 2012
➔ If the time limited ❖ Citations must be in ★ Where the deceased died
for appearance in accordance with Form 167. domiciled outside Malaysia,

9
PROBATE SPECIAL PROCEDURES: CAVEATS, CITATIONS, RENUNCIATIONS, RESEALING OF GRANTS

Form 166 has an application may be made to

expired and the O.71 r.41(2) ROC 2012 the Registrar for an order for a
caveator has not ❖ All averments must be verified grant—
entered an by an affidavit by the citor.
(a) to the person entrusted with
appearance, the the administration of the
person warning ❖ In some circumstances, the estate by the Court having
may file in the citor’s solicitor may affirm jurisdiction at the place where
Registry an the affidavit. the deceased died domiciled;
affidavit showing
that the warning O.71 r.41(3) ROC 2012 (b) to the person entitled to
administer the estate by the
was duly served ❖ The citor must enter a caveat
law of the place where the
and that he has before issuing a citation. deceased died domiciled;
not received a
summons for O.71 r.41(4) ROC 2012 (c) if there is no such person as
directions under ❖ The citation must be served is mentioned in subparagraph
paragraph (11), personally on the citee. (a) or (b) or if in the opinion of
and thereupon the the Registrar the circumstances
so require to such person as
caveat shall ❖ In some situations, this may be
the Registrar may direct;
cease to have exempted and can be done
effect via advertisement. (d) If a grant is required to be
made to, or if the Registrar in
O.71 r.41(6) ROC 2012 his discretion considers that a
❖ The citee must enter grant should be made to, not
less than two administrators to
appearance in accordance
such person as the Registrar
with Form 166 ROC 2012. may direct jointly with any
such person as is mentioned in
O.71 r.41(5) ROC 2012 subparagraph (a) or (b) or with
❖ Any Will must be filed in the any other person:
High Court Registry unless

10
PROBATE SPECIAL PROCEDURES: CAVEATS, CITATIONS, RENUNCIATIONS, RESEALING OF GRANTS

the Will is not in the Provided that without any such

possession of the Citor application as aforesaid—

(A) probate of any will which is

admissible to proof may be
granted—
(i) if the will is in the English
language, to the executor
named

(ii) if the will describes the duties

of a named person in terms
sufficient to constitute him
executor according to the tenor
of the will, to that person;

(B) where the whole of the

estate in Malaysia consists of
immovable property, a grant
limited may be made in
accordance with the law which
would have been applicable if
the deceased had died
domiciled in Malaysia.

11
PROBATE LEGAL PROCEDURE TO OBTAIN GRANT OF PROBATE (NON-CONTENTIOUS) , GRANT OF LA & CONTENTIOUS PROBATE

Non-contentious Probate Grants of Letter of Administration Contentious Probate Proceedings (Both)

Proceedings

APPLICATION FOR GRANT OF PROBATE/ LA O72 Rules of Court 2012 (ROC 2012)

➔ Executor (s) named as the ❖ Best next of kin/ fittest person O. 72 r. 1(2) ROC 2012 applies to all of the following
Applicant (s) named as the Applicant (s) contentious matters:
★ Grant of probate of the Will

O.71 r.5(1) ROC 2012 ★ Letter of Administration of the Estate

➢ Every application for a grant shall be made by originating summons
in Form 6 and shall be supported by an affidavit setting out the ★ Revocation of such grant of Probate/ LA
information in Form 159
★ A declaration relating to the validity of the Will

SUPPORTED BY AFFIDAVIT COMMENCEMENT OF CONTENTIOUS PROBATE

PROCEEDINGS

The core contents of this can be
found in Form 159 ROC should
include the following:
➔ Reference to the Will
The core contents of this can be found
in Form 159 ROC should include the
following:
❖ Relationship to the DE
★ Such actions are to be commenced via a Writ.
★ Inter alia, the writ should contain the nature of
the interests of the Plaintiff and the Defendant
in the estate of the deceased.

★ To commence proceedings to revoke the

The core contents of this can be found in Form 159 ROC should include the grant of Probate or Letters of Administration, a
following: citation under O72 r. 7 ROC 2012 must be
issued or the Probate or LA must already be in

1
PROBATE LEGAL PROCEDURE TO OBTAIN GRANT OF PROBATE (NON-CONTENTIOUS) , GRANT OF LA & CONTENTIOUS PROBATE

➢ Name of the applicant(s) and relevant personal details the High Court Registry.
➢ Details of the death of the deceased
➢ Reference to the assets and liabilities of the deceased
➢ Reference to the beneficiaries

The Affidavit should include the following Exhibits:

➢ Certified True Copy of the Death Certificate

➢ Certified True Copy of the Will (O.71 r.7(1) ROC 2012)
➢ List of Assets & Liabilities together with details of the same
➢ List of Beneficiaries with details of the same

DOCUMENTS TO BE FILED SERVICE & APPEARANCE

➔ Affidavit of Witness 1 ❖ Renunciation (if applicable) ★ O. 10 r. 1 ROC 2012 – the Writ must be
➔ Affidavit of Witness 2 served personally or by A.R. Registered Post
on the Defendant(s)

➢ Originating Summons ★ O. 72 r. 6 ROC 2012 – the Defendant(s) must

enter appearance following the usual rules i.e.
➢ Affidavit with Exhibits 14 days from the service of the Writ on them.

➢ Notice of Appointment of Solicitor representing the Applicant(s)

AFTER FILING REQUIREMENT OF AFFIDAVIT OF

TESTAMENTARY SCRIPT

➢ Once the documents are filed, the Court will return sealed copy of the ★ A testamentary script is any will or draft of a
Originating Summons for extraction via the e-filing system. will or any written instructions for a will to be

2
PROBATE LEGAL PROCEDURE TO OBTAIN GRANT OF PROBATE (NON-CONTENTIOUS) , GRANT OF LA & CONTENTIOUS PROBATE

made or any document of such a nature (O. 72

➢ The sealed copy will contain the case number. r. 9(5) ROC 2012)

➢ Check the e-filing system for the Hearing Date.
➢ Inform client of Hearing Date.
★ Each plaintiff and defendant who has entered
appearance must affirm an affidavit describing
any testamentary script of the deceased or if
there is no such script, a sworn statement to
that effect as far as his or her knowledge is
concerned (O72 r9(1)(a) ROC 2012)

★ If there is such a script but he does not have it

or has no control over it, then he/she must
state the name and address of the person who
does have it and/or have control over it, if
possible, the testamentary script must be
exhibited in the Affidavit (O72 r9(1)(b) ROC
2012).

★ Such an affidavit is to be filed within 14 days of

the entry of appearance (O. 72 r. 9(2) ROC
2012)

AT THE HEARING JID NOT POSSIBLE IN CONTENTIOUS PROBATE

PROCEEDINGS

➢ Applicant(s) to be present with IC ★ O. 72 r. 10(1) ROC 2012 - JID pursuant to

O.13 is not applicable to actions under O.72
➢ Registrar will check the IC, documents and make any relevant

3
PROBATE LEGAL PROCEDURE TO OBTAIN GRANT OF PROBATE (NON-CONTENTIOUS) , GRANT OF LA & CONTENTIOUS PROBATE
inquiries.
➢ He must not allow any grant until he is completely satisfied with all the
inquiries made (O. 71 r. 4 (1) ROC 2012).
➢ Original Will and Death Certificate will be given to the Court. (This
WILL NOT be returned as such it is advisable to inform client to obtain
extracts of the Death Certificate prior to the hearing date.)
➢ Once the Registrar is satisfied with the documents, he/she will grant
probate
➢ Registrar will present 2 copies of a Payment Notice
➢ Write down email address on both and return one to him/her
AFTER THE HEARING
Upon conclusion of hearing, file the following with the relevant payments:
➔ Payment Notice
➔ List of Assets & Liabilities (Yes, File again)
➔ Oath of Administration (Form 161)
4
★ If the Defendant(s) does not enter appearance,
upon filing an affidavit proving due service of
the writ, on the Dt, then the Plaintiff(s) may
proceed as if the Dt(s) has indeed entered
appearance.(O72 r10(2) ROC 2012)
STATEMENT OF CLAIM
★ O. 72 r. 11 ROC 2012 – SOC to serve on the
Defendant(s) within 6 weeks from the date of
entry of appearance OR within 14 days of the
Plaintiff filing an affidavit under r. 9, whichever
is later.
★ O. 72 r. 13 ROC 2012 – the Statement of claim
must contain the nature of the dispute in
question and the relevant details giving rise to
the said dispute.
PROBATE LEGAL PROCEDURE TO OBTAIN GRANT OF PROBATE (NON-CONTENTIOUS) , GRANT OF LA & CONTENTIOUS PROBATE
SURETIES FOR LA
❖ For Letters of Administration,
the Court requires two (2)
sureties (O. 71 r. 34) ROC
2012)
❖ The presentation of these
sureties can be exempted by
making an Application to
Dispense with Sureties.
❖ This is done as follows:
- File Notice of Application
- This Application is to be
supported by an Affidavit
5
★ O. 72 r. 14(1) ROC 2012 – Default of
Pleadings pursuant to O. 19 is not applicable to
actions under O. 72.
★ If the Plaintiff does not serve the SOC/ Defence
at all or in a timely manner, the court may order
the action to be discontinued, the party may
only apply to court to set a date for trial (O72
r14(2) ROC 2012)
CASE MANAGEMENT
★ The court may direct parties to attend pre-trial
case managements.
● If any party fails to attend, the court can
dismiss the action or strike out the
pleadings or make any such order as the
court thinks fit
PROBATE LEGAL PROCEDURE TO OBTAIN GRANT OF PROBATE (NON-CONTENTIOUS) , GRANT OF LA & CONTENTIOUS PROBATE

affirmed by the
Applicant(s) indicating the
reasons why they should
be exempted from the
requirement of sureties.

- Once the above are filed,

the Court will give a
hearing date for this
application.

- Lawyer can attend this

alone.

- Usually, the Application

will be granted.

- Lawyer must file a Draft

Order, await any
corrections

❖ Final Order can be extracted in

a few days

EXTRACTION OF GRANT OF PROBATE/ LA TRIAL

➔ Grant of Probate can be ❖ Grant of Letters of ★ Trial will be in open court

extracted in two (2) weeks Administration can be extracted

6
PROBATE LEGAL PROCEDURE TO OBTAIN GRANT OF PROBATE (NON-CONTENTIOUS) , GRANT OF LA & CONTENTIOUS PROBATE

in two (2) weeks ★ O.72 r. 15(2) ROC 2012 – the Plaintiff(s) or the
➔ It is then the duty of the Defendant(s) may apply to court for leave to
Applicant(s) to pay off the ❖ It is then the duty of the discontinue the action altogether.
liabilities of the deceased Applicant(s) to pay off the
and distribute the assets of liabilities of the deceased and ★ This is to be done by way of a Notice of
the deceased in accordance distribute the assets of the DE Application (O72 r18 ROC 2012) supported by
with the instructions in accordance with the an affidavit stating the reasons as to why the
contained in the Will of the provisions of S.6 of the action ought to be discontinued or why the
deceased. Distribution Act 1958 (DA party is asking for a discontinuance.
1958)
★ O. 72 r. 16 ROC 2012 – parties may agree to a
compromise and may apply to the court for
➢ It is advisable that once the Grant of Probate has been extracted, to leave to set a date for trial
apply to Court to have a few copies of the Grant of Probate, Death
Certificate, Will, List of Assets & Liabilities and List of Beneficiaries to
be certified as true copies by the court before presenting everything to
the client.