IZZA MADIHAH BT HAMDAN 1192042 GOODLUCK!

INTRODUCTION OD PROBATE A) JURISDICTION OF BODY INVOLVE IN ESTATE MATTERS

1. HIGH COURT
TESTATE INTESTATE
✓ Value : Exceed/less 2 million
Died leaving a will Died without leaving a will ✓ Estate : movable or immovable property

Executors apply for GOP Administrators apply for LA ✓ Case : Testate, Intestate & case no property
✓ Hearing : High Court
Register the property under Executor
Register under Administrator name ✓ Authority : Sec 24(f) CJA & Section 5(3) SEDA
name

Distribution to beneficiaries 2. SMALL ESTATE DISTRIBUTION ACT

✓ Value : Not exceeding 2 million
• Section 2 PAA: Estate refers to all properties while property includes movable ✓ Estate : wholly or partly immovable property
or immovable property. ✓ Case : Intestate
© HSB (M) Trustee Bhd: 'estate' doesn't encompass all properties owned by ✓ Hearing : High Court & Estate Distribution Division
the deceased at death. Instead, it denotes the remaining property after proper ✓ Authority : Section 3(2) SEDA & Section 3(3)
administration.
• Section 64 PAA: Individuals making payments in good faith under GOP/LOA 3. PUBLIC TRUST CORPORATION (AMANAH RAYA)

are indemnified and protected, regardless of any defects or circumstances ✓ Value : Less than RM 600,000

affecting the validity of the grant because: ✓ Estate : Only movable property

a) They are the one who deal with the estate ✓ Case : Intestate & Testate

b) Involve in transferring the immovable estate ✓ Hearing : High Court

c) Involve in sale of land ✓ Authority : Section 17(1)(a) PTCA.

d) Involve in distribution order : Section 17(2) PTCA – 2 types of surat

• Basic procedure: kuasa (declaration and direction), depends

a) Obtaining GOP/LOA on amount. Less than 50K, Direction. Less

b) Collection of Asset & Settlement of debts than 600K Declaration.

c) Distribution Estate
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4. SYARIAH COURT determine the entitled persons or their shares. The Syariah Court can certify the
✓ Value : No limit facts and provide opinions upon request or application, subject to a prescribed
✓ Estate : All fee.
✓ Case : Issuance of Sijil Faraid for Muslims ‘estate but not for
validity of will
✓ Hearing : High Court
✓ Authority : FC 9th schedule item 1 of the state list and item 6 (e) of
the federal list.
: Section 46(2)(b) Administration of Islamic Law
(FT) 1993 – inheritance matters involving
Muslims, covering issues such as wills, death-
bed gifts, gifts inter vivos, and the division of
testate or intestate property.

B) EXCLUSIVE JURISDICITION OF HIGH COURT

• Section 5(3) SEDA: The High Court shall have an exclusive jurisdiction to grant
probate in respect of a small estate.
© Re Three Petitions for Letters of Administration: The Administrator-
General has the right to apply to the High Court for the grant of letters of
administration irrespective of the amount of the estate.
• O71 ROC: court to deal with contentious matter
• O72 ROC: court to deal with non-contentious matter
• Section 24(f) CJA 1964: grants the High Court civil jurisdiction, allowing it to
issue probates of wills, letters of administration for the estates of deceased
individuals with property within its territorial jurisdiction, and the power to modify
or revoke such grants.
• Section 50 of the Administration of Islamic Law (Federal Territories) Act
1993: stipulates that in proceedings concerning the estate of a deceased Muslim,
courts other than the Syariah High Court or Syariah Subordinate Court must
 IZZA MADIHAH BT HAMDAN 1192042 GOODLUCK!

WILLS (MUSLIM & NON-MUSLIMS) • If the testator suffered illness, it must be a serious illness which affect their
physical and mental.
• Muslim: PAA 1959 + ROC 2012 + Syariah Law + Faraid
• Non- muslim: PAA 1959 + Wills Act 1959 + ROC 2012 © Re Ng Toh Piew: The testator, initially in good mental health, made a valid
• Section 2 WA 1959: Will is the declaration of intention of the person who will in 1947. However, due to extreme illness in 1949, he created a second
making it to take into effect after his death. It is an absolute right and cannot be will omitting his son. The illness affected his memory, leading to a deficiency
revoke after his death. It will be executed after all the settlement of deceased’s that influenced his choices, rendering the second will invalid. The testator
liability. lacked a disposing mind during the creation of the second will.
© Clive v Margave: Declaration of intention of the person making it, of the
matters which he wishes to take effect on or after his death until which time is © Sethambal Doraiappah: mere fact testator was unwell at the execution of

irrevocable. will does not fall under no testamentary capacity. A testator doesn't need
perfect health or a completely clear mind to make a will; even a slight
A) REQUIREMENT FOR A VALID WILL testamentary capacity is sufficient.
1. WILLS ACT 1959
a) Age © Lee Ing Chin: serious illness of the testator with cancer did not cast doubt
on the validity of the will. If the testator understood the dispositions of the will
• Section 4: No will can be made by any person underage of majority.
and executed it as such, any suspicion regarding its validity was dispelled.
• Section 2 Age of Majority: age of majority 18 years old.

• Testamentary capacity must be determined at the time the will is made, not
b) Testamentary Capacity
after or before the will.
• Meaning the testator is able to understand the nature, content and
effect of the will.
© Estate of Eusoff Mohamed Salleh Angullia: Despite past certifications of
© Banks v Goodfellow: A testator must comprehend the nature insanity and brief mental hospital stays between 1910 and 1934, the testator
and effects of the act, understand the extent of the property being executed a valid will and codicil in 1938, leaving the majority of the estate to
disposed of, and appreciate the relevant claims. charity. The validity is supported by the lucid interval (sound) during execution,
confirmed by the involvement of the testator's solicitor and doctor in attestation.
• In other words, testator must have the ability to remember potential
beneficiaries, understand their relationship to them, and decide whether to
include them in the will based on their claims
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• Burden of proof in proving the testamentary capacity However, they failed to identify any coercion or pressure applied by the wife
over the deceased. Consequently, the will was deemed valid.
© Sethambal Doraiappah: The onus of proving a will lies with the propounder,
especially when there are doubts about the grantor's testamentary capacity c) Formalities
and suspicious circumstances. The propounder must dispel suspicions by • Section 5(1): will must be in writing.
providing evidence for the will's validity. This reinforces the general principle • Section 5(2): will shall be signed by testator with the presence of 2 witnesses
that the party asserting a will's validity carries the burden of proof in the face of at the same time.
challenges.
© Savinder Kaur Fauja Singh: the court emphasized that requirement under
© The Estate of Hew Wai Kwong: The will of the petitioner's late father, who section 5(2) of the Wills Act must be strictly adhere without any room for discretion.
suffered from stroke, hypertension, and diabetes, was invalidated due to The testator must acknowledge their signature in the actual with visual presence
suspicious circumstances. The document, brought to the bedridden testator by of two or more witnesses.
a solicitor at the petitioner's instruction.
© Dr K Shanmugam: It is provided that it is not necessary for the witnesses to
© Chua Koi Hean: Suspicious circumstances in the context of wills typically attest at the same time as long as the witness attest in front of the testator.
focus on factors related to the execution or creation of the will and the
testamentary capacity of the person making the will. © Hindmarsh: Sufficient to use stamped name or seal intended as a signature.

• If there is any allegation of undue influence etc, shifts on the person who © In the Estate of Benjamin: It is important for the witness to subscribe and attest
alleged it is not valid. Normally, the relationship between testator and the the will has been signed by the testator, not necessary for them to know the content
disputed person is essential to show that there is influence. of the will.

© Kevin Peter: The defendant did not deny or dispel any doubts regarding the
• Section 8: incompetency of witness after the execution of will shall not invalidate
validity of the first will presented by the plaintiff. In fact, the defendant kept on
the will
raising concerns about the second will, which was already questionable as it
• Section 9: Gifts to an attesting witness or any person who have relation to the
was made during the testator's bedridden state.
witness is void.
© Carmel Mary: The caveators challenged the deceased's last will, alleging it
© Re Kulsome Bee, stated that only the gift was void but the remain property left
was made involuntarily due to undue influence exerted by the deceased’s wife.
in the will still considered valid.
It was ruled that the onus to prove undue influence lies with the caveators.
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© Re Brauda: Testator left his estate to his 2 daughters and 2 independent

witnesses signed it first. The daughters signed afterward at the testator's request,
intending to strengthen the will. Despite this, the court considered the daughters'
signatures as witnesses. Thus, gifts to the daughters were deemed void under the
Wills Act 1837.

PROPERTY DISPOSABLE BY WILL

• A fully capable testator can use a will to distribute all the property
(movable/immovable) owned or entitled to at the time of death, even if acquired
after making the will.

PROPERTY NOT DISPOSABLE BY WILL

• No property can be disposed by testator if he does not own that property or

holding it in a capacity.
• Example:
a) Policy Insurance: trust automatically created
b) Shares: the testator may have limited disposal rights, as other shareholders
might have the right to buy them from the personal representatives

TYPES OF WILL
1. Formal Will: will under section 5 WA
2. Privileged Will: informal will made without complying the age and formality
requirement. It may be in oral or writing but not signed by testator.
3. Foreign Will: will made outside Malaysia and admissible. It is valid if under
section 27 WA, it is made in writing or a privileged will
- The executor, administrator, or appointed attorney can apply for resealing at
the High Court, granting probate or LA from Commonwealth countries the same
force and effect in Malaysia.
 IZZA MADIHAH BT HAMDAN 1192042 GOODLUCK!

WRITING A WILL
PROPUNDING A WILL IN A SOLEMN FORM
• It must be written in whatever form and in any language
• Person presenting the will (usually the executor or someone with an interest in

© Leong Chee Kong: the court interprets "writing" broadly, following the Interpretation the estate) is seeking a court's official confirmation of the document's validity.

Act 1948 and 1967. This definition includes various methods such as typewriting, This process often involves providing evidence and testimony

printing, electronic storage, etc., as long as the information can be preserved. The
contents remain legally recognized as "writing" until all matters are disposed of APPOINTMENT OF EXECUTOR & TRUSTEES

• Testator appoints the executor to manage the will.

© Kell v Charmer: it can be written in any language even full language in Hebrew as
• Sec 4 PAA: Limit 4 person
in Re Berger’s case also valid.
• It must be natural person of sound mind and majority age when probate is

• Testator must sign (mark, initial) or use thumbprint. granted

© Re Jenkins: rubber stamp • Corporation body also entitled to be an executor

© Willson v Beddard: signature include mark made where the testator’s hand was • The testator has the flexibility to appoint different executors for various parts of
guided by someone else. their estate, especially when owning property both in Malaysia and abroad.
• If minor, the letter of administration can be kept by the guardian until the kid reach
• The will is valid even if the signature doesn't immediately follow the end, there are the age of majority.
blank spaces, or the signature is on a page without any clauses. However, any • Section 20 PAA: if sound mind, the letter may be granted legally to the guardian
changes made beneath or after the signature are not valid. until he regains soundness. Guardian can also obtain the grant personally.
© Re Robert: General rule is signature must be at the of the will creating presumption
that the testator had gone through the whole document.
• Clasification of executor:
a) General (administer all estate)
• Will must be witnessed by at least 2 persons.
b) Special (special purpose)
© In the Goods of Clark: party signed on behalf of testator is a accepted as it has
c) De Son Tort: role without proper appointment
been signed in testator’s direction.
d) Tenor of the will: appointed by reasonable construction of will and
• No specific form for will, but advisable to have an attestation clause to confirm undertaking essential duties
compliance with legal requirements. If not, registrar will require affidavit from witness e) Representation: person who representing the responsibilities of the original
during application. executor, but the chain of this representation can be broken if there is no
valid will, testator fails to appoint the executor in the will and probate in not
obtained for the will.
IZZA MADIHAH BT HAMDAN 1192042 GOODLUCK!

ALTERATION • Exception 2: If the will expressly mentions being made in contemplation of

• It can be made only before the execution of the will. a specific marriage (eg: make a will for upcoming marriage)
• Section 15 WA: any changes or alterations made to a will after its execution
• Section 18 WA: will can be voluntarily revoked in 3 ways:
are not valid, except if the altered words are no longer visually apparent on
the face of the will.
a) New will following previous will
• The test of ‘opticallly apparent’:still can be read and looking
© Re Howard: testator made another 2 will after the execution of the first will
which contain revocation clause. Held, valid.
© Re Horsford: The testator made a valid alteration to her will by pasting a
strip of paper over part of it and writing the changes. It is because the modified
b) By writing declaring intention to revoke
words are not visually apparent unless the strip is forcefully removed.
© Re Durance: The testator had sent a letter to his brother attested by 2
witnesses to burn the will. Valid.
© Re White: the alterations were apparent with a note foot “Alterations Will
dated 14/12/84” but only with the sign of witnesses. The absence of testator’s
© Re Mana Seena wrote a letter to revoke and attested by witness but not sent
sign has rendered the will as invalid.
to the solicitor even after death. Not valid

REVOCATION c) By actual destruction

• Section 12 WA: Automatically revoked by valid marriage or voidable marriage. • Section 14 WA: revocation by burning, tearing or other means of destroying +
animus revicandi (intention to revoke)
© Lee Kim Chye: testator had married and made a will in 1923 assigning his
property to his wife but subsequently married to another woman on 1925. © Re Aynsley: testatrix had torn his will into 40 pieces because he lacked mental
Thus, the will is revoked by polygamous marriage. capacity to revoke. Valid even it is a mode of destruction.
© Re Roberts: The plaintiff applies for letters of representation for the
deceased's estate, arguing that the previous will was revoked by a new WASSIYAH
marriage. Def claims the deceased's consent to the marriage was void due • The difference with Will:
to senile dementia. Held, a voidable marriage without consent holds the same a) Wasiyyah allow distribution 1/3 of testator estate
standing as a valid marriage in matters related to the will. b) A bequest in favor of legal heirs is not valid unless their consent is obtained
and shall not affect faraid.
• Exception 1: If the will exercises a power of appointment and the appointed • Section 6 of the Muslim Wills (Selangor) Enactment 1999 (MWSE): testator
property doesn't default to the testator's heir, executor, or administrator shall be someone who has attained the age of 18, of sound mind, acts on his
 IZZA MADIHAH BT HAMDAN 1192042 GOODLUCK!

free will and not prohibited from administering his property at the time he makes • Section 60(4): but prohibits to touch any property gain by gift, exchange etc or
the will. property more than 5 years unless with court permission
© Amanullah Haji Ali: invalid will because the testator was not sound of mind
© Hj Saud: Enter into SPA sale of land of the beneficiary without the court’s
during the making of the will because he was in coma.
permission for the actual transfer and registration.

APPOINTMENT OF ADMNISITRATOR (PA) © Che Ah Che Ahmad: the estate administrator sought court permission to
sell land for RM 12,777.50. Despite beneficiaries revealing a higher offer of RM
• Section 30 PAA: when granting administration, the court considers the rights of all
14,000, the court emphasized it wasn't its role to consider the buyer's interests,
interested parties. Administration may be granted to devisees, legatees, or trustees,
focusing instead on safeguarding the estate and beneficiaries.
with possible limitations. If the deceased is wholly intestate, administration goes to
those interested in the residuary estate, unless special circumstances require
© Tan Hock Khoon: no consent requires from the beneficiaries to sell the
otherwise.
property and PA has complete discretion for it.

© Re Estate of Chong Swee Lin: Petitioner's bid to become the executor but was
• Section 67 PAA: a deceased person's property is used to pay debts
rejected by court because failed to prove a valid marriage with the deceased, plus,
• Section 68(2) PAA: personal representatives to settle expenses and debts
he was not legally entitled to a share of the inheritance. Hence, the beneficiaries
using the proceeds from property sale and the deceased's remaining funds.
should be prioritized based on the laws of intestate succession for non-Muslims and
faraid rules for Muslims. © Tankard: executors aren't statutorily required to settle a testator's debts
within a year of death. Their duty is to diligently pay debts considering the
• Section 16 PAA: if there is no executor appointed or any circumstances happened
assets available, and any delay must be justified based on the estate's
to the executor (die etc) in Testate cases, it is known as LA with will annexed. Thus,
circumstances.
it shall fall under LA.

POWER TO DISMISS PA
• Section 6 Distribution Act 1958: provide the list of people who entitle to be the
• Section 34 PAA: Power to change or withdraw probate or LA for any reason.
administrator based on their relationship.
© Ligar Fernandez: There is suspicions about the PA’s inaction, lack of
diligence, or conflict of interest is enough for court intervention under Section
POWER TO SELL PROPERTY FOR DEBT
34.
© Mak Chee Chong: Revoke appointment of executors due to brain surgery
• Section 68 PAA: empowers PA to sell the immovable property for any situation that
and neuro problem. Held medical report is needed to analyses.
need required to pay (liability)
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PROCEDURE OF HIGH COURT FOR NON CONTENTIOUS Filing cause paper (as in Asiignment Probate/LA)

• Only apply to cases where the validity of will or letter administration is not Hearing
-
challenged Order granted
© Abdul Majid v Har Abdul Razak: Originating Summon can only be applied in Extraction letter of probate/LA
the case where no substantial facts is occurred. As in our case, no issue was raised
in regards with the property thus, OS must be used.

Made by ex-pate in originating summon supported by

O71 R5(1) ROC
affidavit
O71 R5(2-5) Details affidavit
Filing cause paper (as in Asignment Probate/LA)
- include definition what is probate sec 2 PAA
- Include suitable administrator under section 30 PAA
-
Hearing

Order granted

Extraction letter of probate/LA

PROCEDURE OF HIGH COURT FOR CONTENTIOUS

• Apply to cases where the validity of will or letter administration is not challenged
© Damayanti Kantilal Doshi: if the applicant anticipate to challenge the will it will
be more appropriate to apply under O72 a s a contested matter because it involves
substantive matter.

O72 R2(1) ROC Begun by writ and issued out by Registry

Endorsed with statement of the nature of the interest of the

O72 R2(2)
plaintiff and defendant
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PROCEDURE OF TESTACIES PROCEDURE OF INTESTACIES

O71(1) ROC Make sure it is a non-contentious O71(1) Make sure it is a non-contentious

Applicant must conduct preliminary inquiries to produce essential Intestate property shall vest in ARB unless LA has been obtained
S39(1) PAA
O71 R3(5) ROC documents like the death certificate, original will, asset lists, under section 30 PAA
valuation certificate, property titles, and more.
Court considers rights of interested parties. Devisee, legatee, or
Choose the right application mode based on the total value of the S31 PAA trustee may be granted administration. Posses same right as
-
deceased's assets. executor.
Then, application confirmed by oath and made via OS to the
- Conduct preliminary questions by gathering all documents
Registrar. Accompanied by an affidavit providing necessary
information and documents. Made application via OS accompanied by affidavit stating about
O71 R5 ROC O71 R5 ROC
• Describes the applicant's relationship with the deceased. the deceased relationship

• Mentions the deceased's domicile, cause of death if outside O71 R5(6) If there is any delay lapse 3 years, shall explained in the affidavit.
Malaysia, and reasons for any delay in application.
O71 R17 Appointment of administrator according to rank of priority.
O71 R7 ROC Application submits to Registrar on hearing.
O71 R19 rank of priority as in section 30 PAA.
O71 R9 ROC1. Evidence needed for execution of will
O71 R25 Exception to Rank of Priority.
O71 R10 ROC2. Evidence needed for blind or illiterate testator

3. Registrar will receive the application and perform necessary In Intestate situation, Administration Bond is important secured by
O71 R4 ROC 2 sureties. If the properties is more than RM 50,000 it can be
inquiries until he satisfies. Section 35 PAA
4. Registrar will receive the application and perform necessary waived. In special circumstances Registrar may dispense the
O71 R4 ROC sureties.
inquiries until he satisfies.

O71 R33 ROC5. Hearing grant of order

PROCEDURE OF SMALL ESTATES

 IZZA MADIHAH BT HAMDAN 1192042 GOODLUCK!

Assets of the deceased consisting entirely or partially of • Once order has been made, Land Administrator will make
S3(2) SEDA immovable property located in any state with a total worth of not orders for the granting of LA to appoint administrator for
more than two million ringgits on the date of application. the estate (Form F), as well as the Distribution Order for
distribution of the estate (Form E).
Any person claiming to be interested in the estate:
Beneficiary/Creditor/Caveator/Purchaser under a valid Sale and Regulation 7(1) • Form F normally granted when only when the land is
WHO MAY
Purchase agreement/Chargee/lessee/Penghulu of a locality or SEDA without tile, deceased liabilities need to be settled,
APPLY/
Settlement Officer of the district/Official administrator/Corporation beneficiary does not reach consensus of division.
(AmanahRaya) • 1-4 persons max

Allows authority to manage the administration. Land Administrator

• Form EE: estate may be sold for expenses, debt, fees
shall have exclusive competence to order the division of the estate
S4 SEDA and duty
and, if required, to give letters of administration whenever it is
made to appear.
Any person who is aggrieved by any order or decision made by
Allows petition for the distribution of a small estate in Form A
Land Administrator has 14 days from the date of the order to
S8 SEDA together with other relevant documents of deceased, asset and
appeal to the High Court, either against the whole or any part
(DOCUMENTS) beneficiary. signed and affirmed before a Commissioner of Oaths
of the judgement:
S29 SEDA
/ Magistrate.
K1(Notice of Appeal)
Form B will be filed by Land Office to asses the total asset value
K2 (Take up record)
- and submit to High court to verify whether there is any prior
Form K3 (memorandum of appeal)
application has been made. (Kalau tiada kekal di SEDA).

- 6. After 3 months filing, Applicant received date of hearing

7. If unable to attend, filled in DDA form (Letter of Consent) for the

-
distribution that all beneficiary agreed.

- 8. If Muslim according to Faraid & Non – Muslim (S6 Distribution Act)

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Movable property: Guideline in Schedule II

Immovable property: Form E will directly transfer to the beneficiary and Form F to
appoint administrator under specific grant

HOW IF ADA MINOR BENEFCIARIES

Immovable: register through trustee and enter caveat Form HH

Movable: Deposit through Amanah Raya until attain age of majority

SPOUSE CHILDREN PARENT

1/1 - -
- 1/1 -
- - 1/1
1/2 - 1/2
1/3 2/3 -
- 2/3 1/3
1/4 1/2 1/4
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RENUNCIATION OF PROBATE © Habibah bte Badu Rahman: once the caveat lapsed through the failure of the
caveator to renew it within six months, the business in respect of which that caveat
• Express or constructive
was lodged automatically ceases to be contentious.
• Section 8 PAA: allows individuals eligible for representation to voluntarily waive this
right. f) R37(6): Registrar shall maintain index of caveats entered in all Registries
• Express: Section 8(2) PAA: It can be made orally during petition/probate action, in g) R37(7): Registrar must acknowledge the application
writing, attested by an advocate or a person qualified for affidavit. h) R37(8): A caveat can be issued by someone interested, referred to as the
• Constructive: Section 9(1) PAA: individuals failing to appear or object after being 'person warning,' through a warning in Form 165. This warning must state
personally served with notice for representation hearing are deemed to have their interest.
constructively renounced their right to representation. i) R37(9): Withdrawal of caveat in Form 166 and give notice to Registrar
© Paramanantham: the court confirmed that the letter of renunciation and consent j) R37(10): A caveator with an opposing interest can enter appearance using
clearly showed the plaintiffs giving up their rights to the deceased's property in favor Form 166 within eight days of receiving the warning, or later if no affidavit
of the defendant due to natural love and affection. has been filed.
• Section 10 PAA: renunciation of probate and administration may be revoked at any
time with the permission of the Court • O71 R40 ROC: A caveat in force at the start of citation or originating summons
• Court can refer to Section 6 Distribution Act to determine the next ranking to grant proceedings remains until an application for a grant is made. A caveat made in
administration. response to a warning stay until the start of a probate action.

CAVEAT CITATION

• Filed by individuals with an interest in the grant of letters of representation to delay • O71 R41 ROC: allowing individuals with an interest in an estate to compel
administration, allowing time for investigations or their own application for letters of someone with rights to take action in obtaining the grant of representation.
representation. • 3 types of Citation (Order 71 Rule 42(1)):
• Procedure O71 R37: a) Acceptance or Refusal Citation
a) R37(1): Entry of caveat by caveator Used when someone refuses to give up their right to represent the deceased,
b) R37(2): Notice in Form 158 to Registrar allowing them to either accept or reject the grant of probate.
c) R37(3): Filing in Form 164 and obtain acknowledgement of entry b) Executor Intermeddling Citation:
d) R37(4): Name of caveator Issued when an executor gets involved in managing the deceased person's
e) R37(5): Duration within 6 months. estate but doesn't officially take the grant within 6 months of the person's
death.
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c) Invalid Will Challenge Citation: • Parties who can apply: personal representatives, beneficiaries, creditors
Used when a person questions the validity of an unproved will. In this case, with claims, and other involved parties.
they may cite the executors or beneficiaries to present and prove the validity • Section 63 Trustee Act: provides legal protection if trustees act honestly
of the will. and reasonably, seeking court directions and acting in the estate's best
interests.
• Procedure:
a) R41(3): Entry of caveat © Ong Soo Keok: question on the executor’s action.
b) R41(1): Form of citation © Jasbir Singh: Questioning the application of Letters of Administration (LA)
c) R41(2): Affidavit by deceased’s wife before Probate which entitled him as executor, where no
d) R41(4): Service of citation contestation of the will has occurred.
e) R41(5): Filing of will referred citation
f) R41(6): Apppearance by person cited

ADMINISTRATION ACTION
• O80 ROC: Any administration questiones arise can filed to HC.
• If there is a dispute between the beneficiaries and executor, the beneficiaries
can commence an administration action against the executor at the High Court
to obtain directions on questions that arose during the administration process.
• Aims not to remove the executor or probate but to declare:
a) The administration of the estate of a deceased person or in the execution
of a trust;
b) The composition of any class of person or a beneficial interest in the estate
of such person or in any property subject to a trust; or
c) The rights or interest of persons claiming to be a creditor of the estate or to
be entitled under a Will or on intestacy of a deceased person or to be
beneficially entitled under a trust
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PUBLIC TRUST CORPORATION

• Serves as a trustee, personal representative, and administrator of movable
property and funds under wills or settlements.
• The court can grant Probate of Will or Letters of Administration (LA) to Amanah
Raya.
• Section 17 PTCA: Amanah Raya has the authority to summarily administer
moveable property of a deceased person when the estate's total value is less than
RM600k.
• Muslim will follow Faraid, Non-Muslim will follow Distribution Act
• A Statement of Account is prepared post-distribution, detailing assets, settled
liabilities, and beneficiaries' shares.
• Funds for beneficiaries under 18 are held in trust until they reach 18
• If property under RM 50,000, Direction is issued outlining the distribution plan, and
beneficiaries can receive payment by presenting this Direction to the relevant
bank.
• If less than RM 600,000, declaration will be issued.

PROCEDURE

• Complete the provided standard form from Amanah Raya and submit it as the initial
step.
• Include necessary documents like the death certificate, marriage certificate, legal
heirs' IC or birth certificate, and additional items such as bank passbook, vehicle
registration card, and faraid certificate for Muslims.
• Amanah Raya reviews the application, checking for compliance with conditions. If
all requirements are met, and it is deemed appropriate, Amanah Raya issues a
written declaration stating its intention to administer the property.
• The declaration/direction is issued subsequently, leading to the integration of all
assets.
IZZA MADIHAH BT HAMDAN 1192042 GOODLUCK!

ISSUES RELATING TO HIBAH © Tengku Haji Jaafar Ibni Almarhum Tengku Muda Ali: it can only be

• Hibah means a gift or something which is given to someone without valid if the done takes possession of thegift of the land at the time the gift

anyconsideration or price in return. was made.

© Awang Bin Abdul Rahman: Make a hibah but the property was
• Donor – done
charged to the bank, hence it does fulfill the requirement of subject matter.
• Technically, it is an arrangement to voluntarily transfer a property from
oneperson to another during their lifetime
# Kalau keluar soalan tentang hibah, mention tentang requirement ini dan
• 3 elements:
pastikan itu bukan hibah bersyarat.
a) The donor
Eg: Nabil akan transfer rumah ke Mujib lepas Nabil meninggal nanti (ini
- must sound of mind, attained the age of majority, must not subject to
syarat tidak boleh)
interdiction and owns to the matter if hibah

b) The donee # Transfer property mesti pada masa itu juga dan aka nada certificate
- must have legal capacity to hold the property but can be waived when hibah yang menujukkan kita sudah berakad.
the hibah is transfer to minor or insane person
- if the done die before donor, hibah is not valid unless the hibah has been #So pergi ke mahkamah syariah untuk mahkamah declare bahawa ada
completed before hibah yang sah aaupun tidak sahaja dan bawa ke mahkamah.

c) The subject matter

- it must exist and belong to donor and no encumbrances
- it also must be identifiable
© Ibrahim Yusoff: The hibah (gift) of FELDA assets, including a house,
land, and orchards, is not valid because the settler lacks absolute control
and ownership until certain payments are completed, and the land title is
registered in their name.

d) Offer and acceptance

- can be orally or in writing (kalau rumah MOT/DOA)
- the transfer of property must be at the time the hibah was made.
- any confitional hibah is not accepted according to Majlis Fatwa Selangor
 IZZA MADIHAH BT HAMDAN 1192042 GOODLUCK!

CASES RELATE TO PROBATE IN GOALS Held:

Court grant LA to both petitioner’s widow and daughter and the deceased’s son and
1. Ong Soo Keok & Ors v Ong Soo Kwee
court prioritized right and all interested parties in the deceased’s estate. Reasons to
Executors and trustees (appellants) seeking protection from personal liability for certain
exclude the caveator were not strong enough. There was no need for the majority to
transactions they carried out in the estate of Loh Ah Moy. They wanted relief based on
exclude the minority, as the law provided avenues for removing a co-administrator if
the will or, as an alternative, under s 63 of the Trustees Act 1949. HC, rejected their
issues arose. The caveator's inclusion wouldn't jeopardize the administration of the
request, stating they didn't follow the will and didn't act honestly and reasonably. They
estate.
appeal on issue whether the court should have considered the appellants' request,
taking into account the specific circumstances, the will's terms, and legal principles 3. Banks v Goodfellow
related to s 63 of the Act. Involve a legal challenge to the validity of the will of John Banks. The will, made in
1867, bequeathed his estate to his nieces and nephew. Following Banks’ death, his
Held:
mental capacity at the time of making the will (dementia & delusional) was
The court sided with the appellants, overturning the High Court orders. It stressed that
questioned, leading to a legal dispute.
relief under Section 63 of the Trustee Act hinges on the trustee's honest and reasonable
actions, assessed case by case. There's no fixed rule; it's a matter of judicial discretion. Held:
The court rejected an objective test and highlighted the importance of evaluating • The court use ‘Golden Rule’ test: To validly execute a will, the testator must
honesty and dishonesty earlier in the case. Despite actions conflicting with the will's (1) shall understand the nature of the act and its effects (2) shall understand
spirit, they were in the estate's and beneficiaries' interests. Ultimately, the court the extent of the property of which he is disposing (3) appreciate the claims to
emphasized a case-by-case approach, avoiding rigid rules in assessing trustee conduct. which she or he ought to give effect (4) free from mental disorders or delusions
influencing their decisions.
• The person challenging mental capacity bears the burden of proof.
2. Tan Sri Datuk Syed Kechik
• In this case, the will was valid at the time he made it.

The widow and daughters wanted to manage the deceased's estate from the son from
a previous marriage but he opposed, filing a caveat and a lawsuit for additional assets. 4. Chin Jhin Thien & Anor (follow Golden Bank)

The dispute centered on who should be administrators. The petitioners argued the son Involve a dispute of testamentary capacity wherethe deceased diagnosed with

lacked financial understanding, disregarded civil law, was a failed businessman, and terminal cancer and had secretly instructed the respondents to hold assets in trust

had animosity. They sought sole administration or, if joint, advocated for majority rule for his second wife and their children (secret trust)

due to the son's potential disruption.

IZZA MADIHAH BT HAMDAN 1192042 GOODLUCK!

Held:
• The deceased had the testamentary capacity to make the will. The trial judge
failed to appreciate that:
a) Deceased was suffering from terminal cancer did not automatically deprive
him of testamentary capacity when he executed the will since he was
sound mind on that day.
b) All the five witnesses who saw the deceased that day affirmatively stated
that he was of sound mind, lucid, conscious, mentally alert and able to
communicate
c) PW1's testimony did not dispute the deceased's testamentary capacity;
last seeing him 5 days prior, PW1 found the deceased lucid and of sound
mind. This aligns with the evidence from the respondents' expert witness.
 IZZA MADIHAH BT HAMDAN 1192042 GOODLUCK!

FLOW IN CONTESTING A VALID WILL • The formalities in writting:

- Section 8: incompetency of witness after the execution of will
© Kevin Peter Judge Ahmad Kamal had explained the procedure in
shall not invalidate the will
contesting a valid will:
- Section 9: Gifts to an attesting witness or any person who have
1. The executor/propounder of the will must prove a prima facie case relation to the witness is void.
in two stages: - Require the witness to testify in court.

STAGE 1: EXECUTION OF A VALID WILL © Savinder Kaur Fauja Singh: the court emphasized that
requirement under section 5(2) of the Wills Act must be strictly
• Executors need to prove the will is made by the testator and it
adhere without any room for discretion. The testator must
follow the formalities of witness and it must be in writing.
acknowledge their signature in the actual with visual presence of
• Analyse the age of testator whether attain the age of majority. two or more witnesses.
© Dr K Shanmugam: It is provided that it is not necessary for
• The formalities in writting:
the witnesses to attest at the same time as long as the witness
- Section 5(1): will must be in writing.
attest in front of the testator.
- Section 5(2): will shall be signed by testator with the presence of
2 witnesses at the same time.
© Leong Chee Kong: the court interprets "writing" broadly,
following the Interpretation Act 1948 and 1967. This definition
includes various methods such as typewriting, printing, electronic
storage, etc., as long as the information can be preserved. The
contents remain legally recognized as "writing" until all matters are
disposed of.
 IZZA MADIHAH BT HAMDAN 1192042 GOODLUCK!

STAGE 2: TESTAMENTARY CAPACITY OF TESTATOR IN THE © Sethambal Doraiappah: no need to be in perfect health,
MAKING OF WILL slightest testamentary capacity already sufficient.

• Executors need to prove the testator condition’s in the making of

2. If the executor able to prove the two components, the burden
will.
now shifts to the Defendant to prove whether there is any fraud
© Banks v Goodfellow: We can apply the Golden Test Rule the:
or undue influence etc
To validly execute a will, the testator must (1) shall understand the
3. If the Defendant able to prove, the burden now shift again to
nature of the act and its effects (2) shall understand the extent of
the executor to dispelled any doubt arise.
the property of which he is disposing (3) appreciate the claims to
which she or he ought to give effect (4) free from mental disorders
or delusions influencing their decisions.

© Re Ng Toh Piew: suffered extremely ill during making the second

will and he was deficient in memory which affect his choices. Invalid
will.

© Lee Ing Chin: serious illness of the testator with cancer did not
cast doubt on the validity of the will.

© Kevin Peter: the testator was bedridden and cannot

communicate everyone, only gesture and very limited word can be
expressed by the testator. The will was held invalid because raise
suspicious.