Grant of Probate in Malaysia

Grant of Probate in Malaysia

When someone passes away, their assets and estate need to be distributed according to their will or the law. In Malaysia, the process of distributing an estate is known as probate. There are two types of probate: contentious and non-contentious. In this article, we will explain what these types of probate are, the differences between them, and how they work in Malaysia, including legal provisions and statutes from the Rules of Court 2012 and the Probate Administration Act 1967.

What is a Grant of Probate?

A Grant of Probate is a document, issued by the High Courts, which appoints an executor (or up to 4 of them if acting jointly) to manage and distribute the estate. This can be one of the most straightforward ways to get access to the deceased’s property with a minimum time required.

Should the executor withdraw or be unable or incapacitated to manage the estate, the Court would grant a Letter of Administration with a Will Annexed, appointing administrators to the estate under the provisions of the Probate and Administration Act 1959.

Probate vs. Letters of Administration in Malaysia

The procedures under the Grant of Probate and Letters of Administration have several key differences, which can be summarized as below:

GRANT OF PROBATE	LETTERS OF ADMINISTRATION
the deceased has left a will	the deceased has left no will or there is a will, but the executors are unwilling or unable to fulfil it
the estate is administered by executors, defined by the will	the estate is managed by administrators, appointed by the High Courts or other authority in Malaysia upon the application
the application for the Grant of Probate is filed to the High Courts in Malaysia	any person, who might be interested in the estate, such as next of kin or a creditor, can apply as an administrator
the period for extraction of the Grant of Probate in Malaysia can take up to several months and is generally much shorter than that of Letters of Administration	the application for Grant of Letters of Administration is filed to the High Courts, or District Land Office or Amanah Raya Berhad, depending on the estate and its value
no guarantors or sureties are required	it can take from several months up to several years to extract the Letters of Administration
no order for distribution of the estate is required	the administrator will need to have guarantors or sureties who would guarantee the proper administration of the estate

Non-Contentious Probate

Non-contentious probate is the process of obtaining a court order that confirms the validity of a deceased person's will and appoints an executor to manage the estate. This process is relatively straightforward and does not involve any disputes or objections. According to Section 5 of the Probate and Administration Act 1959, non-contentious probate can be granted by the High Court without a hearing, provided that all the necessary documents are submitted and no objections are raised.

The first step in non-contentious probate is to obtain a grant of probate from the High Court of Malaya. Rule 32 of the Rules of Court 2012 sets out the documents that must be submitted with the application for a grant of probate, including:

• The original will or a copy certified by a solicitor
• The death certificate of the deceased person
• An affidavit verifying the authenticity of the will and the identity of the executor
• An inventory of the deceased person's assets and liabilities

Once the High Court approves the grant of probate, the executor can distribute the assets to the beneficiaries according to the will. It is important to note that if the deceased person did not leave a will, their assets shall be distributed by way of letters of administration.

Contentious Probate

Contentious probate is the process of resolving disputes or objections to a deceased person's will. This type of probate is more complex and can involve court proceedings. According to Section 44 of the Probate and Administration Act 1959, contentious probate can only be granted after a hearing, where the court will examine the evidence and make a ruling on the validity of the will and the distribution of assets.

Disputes can arise for various reasons, such as:

• The validity of the will is being questioned
• The will was not properly executed
• The deceased person was not of sound mind when they made the will
• There is more than one will, and it is unclear which one is valid
• The distribution of assets is being contested by beneficiaries or family members

In cases of contentious probate, the executor may need to engage the services of a lawyer to represent them in court. Rule 52 of the Rules of Court 2012 sets out the procedure for contentious probate, including the filing of a caveat to prevent a grant of probate or letters of administration from being issued. The court will examine the evidence and make a ruling on the validity of the will and the distribution of assets.

Conclusion

In conclusion, probate is the process of distributing a deceased person's assets and estate. Non-contentious probate is a straightforward process that involves obtaining a grant of probate from the High Court, while contentious probate involves resolving disputes or objections to a deceased person's will. It is important to be aware of the legal provisions and statutes that govern probate in Malaysia, including the Rules of Court 2012 and the Probate Administration Act 1967. If you are unsure which type of probate is applicable in your situation, it is recommended to seek legal advice.

Article by Darryl Lim (Pupil-in-Chambers)
Edited by XXX (Partner)
04 April 2023