PROBATE AND ADMINISTRATION ACT 1959

LAWS OF MALAYSIA REPRINT Act 97 PROBATE AND ADMINISTRATION ACT 1959 Incorporating all amendments up to 1 January 2006 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH PERCETAKAN NASIONAL MALAYSIA BHD 2006 2 Laws of Malaysia ACT 97 PROBATE AND ADMINISTRATION ACT 1959 First enacted ... ... ... ... ... ... ... Revised ... ... ... ... ... ... ... ... 1959 (Ordinance No. 35 of 1959) 1972 (Act 97 w.e.f. 1 November 1972) PREVIOUS REPRINTS First Reprint ... ... ... ... ... 1994 Second Reprint ... ... ... ... ... 2000 Probate and Administration LAWS OF MALAYSIA Act 97 PROBATE AND ADMINISTRATION ACT 1959 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title and commencement 2. Interpretation PART II GRANTS OF REPRESENTATION 3. Grant of probate to executor 4. Restrictions on grant 5. Executor not to act while administration is in force 6. Right of proving executors to exercise powers 7. Cesser of right of executor to prove 8. Express renunciation 9. Constructive renunciation 10. Effect of renunciation 11. Withdrawal of renunciation 12. Executor of executor represents original testator 13. Grant of representation to a trust corporation 14. Death of one of several executors, etc. 15. Codicil propounded after probate 16. On failure of executors 17. Qualifications of administration with will annexed 3 4 Laws of Malaysia ACT 97 Section 18. Letters of administration until will is produced 19. Letters of administration pendente lite 20. Minors 21. Lunatics 22. Letters of administration of trust property 23. Letters of administration to collect and preserve property 24. Grants with exception 25. Probate of copy or draft or of contents 26. Destroyed will 27. Administration with copy annexed of authenticated copy of will proved abroad 28. Administration when limited grant expired and still some part of estate unadministered 29. Absent persons 30. Discretion of Court as to persons to whom administration is to be granted 31. Result of grant of administration 32. Continuance of legal proceedings after revocation of temporary administration 33. Caveat 34. Revocation of grant 35. Administration bond 36. Bond by creditor who is administrator 37. Assignment of bond 38. Discharge of administration bond PART III ADDITIONAL POWERS OF COURT 39. Vesting of property of an intestate 40. Power of the Court relating to proving and renunciation 41. Order to bring in will, etc. 42. Death of payee 43. Executor’s or administrator’s commission Probate and Administration 5 Section 44. Funeral and testamentary expenses allowed 45. Receiver pending grant 46. (Deleted) 47. Application of rules relating to receivers 48. Offence in relation to property of which receiver appointed 49. No suit against receiver 50. Receiver’s lien PART IV RE-SEALING OF PROBATES AND LETTERS OF ADMINISTRATION GRANTED OUT OF MALAYSIA 51. Interpretation 52. Powers of Court to re-seal 53. Application to British Courts in foreign countries 54. Provision of Estate Duty 55. Security on re-sealing letters of administration 56. Security for creditors in Malaysia 57. Notice of sealing 58. Notice of revocation PART V POWERS, RIGHTS, DUTIES AND OBLIGATIONS OF REPRESENTATIVES 59. Rights of action of personal representative 60. Power of personal representative to dispose of property 61. Purchase by personal representative of deceased’s property 62. Duty of personal representative as to inventory 63. Transfer of assets to personal representative in country of domicile of deceased for distribution 64. Protection of persons acting on probate or administration 65. Liability of a person fraudulently obtaining or retaining estate of deceased 66. Liability of estate of personal representative 6 Laws of Malaysia ACT 97 PART VI ADMINISTRATION OF ASSETS Section 67. Property of deceased is asset for payment of debts 68. Duties of representatives 69. Administration of assets 70. Charges on property of deceased to be paid primarily out of the property charged 71. Contracts by personal representatives 72. Assent or conveyance by personal representative 73. Right to follow property and powers of the Court in relation thereto 74. Powers of personal representative as to appropriation 75. Power to appoint trustees of minor’s property 76. Obligations of personal representative as to giving possession of land and powers of the Court 77. Power to postpone distribution PART VII POWERS OF REGISTRAR, DEPUTY REGISTRARS, SENIOR ASSISTANT REGISTRARS AND ASSISTANT REGISTRARS 77A. Powers of Registrar PART VIII APPOINTMENT, POWERS AND DUTIES OF OFFICAL ADMINISTRATOR 78-80. 81. 82-85. 86. 87-89. 90. (Deleted) Grant of letters of administration to the Corporation in cases of delay (Deleted) Undistributed funds may be passed to the Corporation (Deleted) Saving and transitional FIRST SCHEDULE SECOND SCHEDULE Probate and Administration 7 LAWS OF MALAYSIA Act 97 PROBATE AND ADMINISTRATION ACT 1959 An Act relating to probate and letters of administration. [Peninsular Malaysia-1 February 1960] PART I PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Probate and Administration Act 1959, and shall come into force on such date as the Minister may by notification in the Gazette appoint and the Minister may appoint different dates for the coming into force of this Act in different States, and in the case of Sabah and Sarawak, he may appoint different dates for different provisions of this Act. (2) In bringing this Act into force in Sarawak the Minister may by order make such modifications thereto as he deems necessary in consequence of any modifications made to the Small Estates (Distribution) Act 1955 [Act 98], under subsection 1(2) of that Act. Interpretation 2. In this Act, unless the context otherwise requires— “administration” means, with reference to the estate of a deceased person, letters of administration issued by the Court whether general or limited or with the will annexed or otherwise authorizing the person therein named to administer the deceased person’s estate in accordance with law; “administrator” means a person to whom administration is granted; “Chief Judge” has the meaning assigned thereto in the Courts of Judicature Act 1964 [Act 91]; 8 Laws of Malaysia ACT 97 “commencement of this Act” in relation to any State means the date on which this Act comes into force in that State; “Corporation” means Amanah Raya Berhad, a company incorporated under the Companies Act 1965 [Act 125] and pursuant to section 3 of the Public Trust Corporation Act 1995 [Act 532]; “Court” means the High Court or a Judge and includes, in cases where any of them is empowered to act, the Registrar, Deputy Registrars, Senior Assistant Registrars and Assistant Registrars of the High Court; “estate” means all property which if a person died intestate would vest in the Corporation under section 39; “executor” means a person to whom the execution of the last will of a deceased person is, by the testator’s appointment, confided and includes a person deemed to be appointed executor as respects settled land; “intestate” includes a person who leaves a will but dies intestate as to some beneficial interest in his movable or immovable property; “pecuniary legacy” 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; “personal representative” means the executor, original or by representation, or administrator for the time being of a deceased person, and as regards any liability for the payment of death duties includes any person who takes possession of or intermeddles with the property of a deceased person without the authority of the personal representatives or the Court; “person of unsound mind” means— (a) a person found under section 10 of the Mental Disorders Ordinance 1952 [Ord. 31 of 1952], to be of unsound mind and incapable of managing himself and his affairs; (b) a person certified insane by a medical practitioner and by an Asylum Medical Officer under section 4 of the Lunatics Ordinance of Sabah [Cap. 74]; and (c) a person found under section 5 of the Mental Health Ordinance 1961 of Sarawak [Ord. 16 of 1961] to be of unsound mind and incapable of managing himself or his affairs, and includes any other person of unsound mind incapable of managing himself or his affairs; Probate and Administration 9 “possession” includes the receipt of rents and profits or the right to receive the same, if any; “prescribed” means prescribed by rules of court; “probate” means a grant under the seal of the Court authorizing the executor or executors therein named to administer the testator’s estate; “probate action” means a cause or matter in which a petition for probate or administration is contested by any person, and includes an application to alter or revoke any grant of representation; “property” includes a thing in action and any interest in movable or immovable property; “purchaser” means a lessee, mortgagee or other person who in good faith acquires an interest in property for valuable consideration, also an intending purchaser, and “valuable consideration” includes marriage, but does not include a nominal consideration in money; “Registrar” means the Registrar of the High Court and includes the Deputy Registrars, Senior Assistant Registrars and Assistant Registrars of the High Court; “representation” means the probate of a will and administration, and the expression “taking out representation” refers to the obtaining of the probate of a will or of the grant of administration; “securities” includes stocks, funds or shares; “specific legacy” means a legacy of specified property; “trust corporation” means the Corporation, or a company incorporated under the Trust Companies Act 1949 [Act 100], or the corresponding written law in force in Sabah or Sarawak; “will” includes any codicil or other testamentary document and a privileged will valid under section 26 of the Wills Act 1959 [Act 346], or the corresponding written law in force in Sabah or Sarawak. 10 Laws of Malaysia ACT 97 PART II GRANTS OF REPRESENTATION Grant of probate to executor 3. (1) Probate may be granted to an executor appointed by a will. (2) The appointment of an executor may be express or implied. (3) Subject to section 4, where several executors are appointed probate may be granted to them all simultaneously or at different times. Restrictions on grant 4. (1) Representation shall not be granted to more than four persons in regard to the same property. (2) If any beneficiary is an infant, or if a life interest arises under the will or intestacy, administration shall be granted either to a trust corporation (with or without an individual) or to not less than two individuals: Provided that— (a) the Court may in its discretion and for such special reasons as it may think fit grant administration to one individual; and (b) the Court in granting administration may act on such prima facie evidence, furnished by the applicant or any other person, as to whether or not there is a minority or life interest, as may be prescribed. (3) If there is only one personal representative (not being a trust corporation) then, during the minority of a beneficiary or the subsistence of a life interest, and until the estate is fully administered, the Court may on the application of any person interested or of the guardian, committee or receiver of any such person, or of its own motion, appoint in accordance with rules of court one or more personal representatives in addition to the original personal representative