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
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ACT 97
PROBATE AND ADMINISTRATION
ACT 1959
First enacted
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1959 (Ordinance
No. 35 of 1959)
Revised ...
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1972 (Act 97 w.e.f.
1 November 1972)
PREVIOUS REPRINTS
First Reprint
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1994
Second Reprint ...
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2000
Probate and Administration
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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
Death of one of several executors, etc.
14.
15.
Codicil propounded after probate
16.
On failure of executors
17.
Qualifications of administration with will annexed
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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
Order to bring in will, etc.
41.
42.
Death of payee
43.
Executor's or administrator's commission
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Section
44.
Funeral and testamentary expenses allowed
45.
Receiver pending grant
(Deleted)
46.
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
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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
(Deleted)
78-80.
81.
Grant of letters of administration to the Corporation in cases of delay
(Deleted)
82-85.
86.
Undistributed funds may be passed to the Corporation
(Deleted)
87-89.
90.
Saving and transitional
FIRST SCHEDULE
SECOND SCHEDULE
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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
b y 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
In this Act, unless the context otherwise requires--
2.
" a d m i n i s t r a t i o n " 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];
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ACT 97
"commencement of this Act" in relation to any State means the
date on which this Act comes into force in that State;
" C o r p o r a t i o n " 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;
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"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;
" t r u s t 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.
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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
p e r s o n a l representatives in addition to the original personal
representative.
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(4) This section applies to grants of representation made after
the commencement of this Act whether the testator or intestate
dies before or after the commencement.
Executor not to act while administration is in force
5.  Where administration has been granted in respect of any estate
of a deceased person, no person shall have power to bring any
action or otherwise to act as executor of the deceased person in
respect of the estate comprised in or affected by the grant until the
grant has been recalled or revoked.
Right of proving executors to exercise powers
6. (1) Where probate is granted to one or some of two or more
persons named as executors, whether or not power is reserved to
the others or other to prove, all the powers which are by law
conferred on the personal representative may be exercised by the
proving executor or executors for the time being and shall be as
effectual as if all the persons named as executors had concurred
therein.
(2) This section applies whether the testator died before or after
the commencement of this Act.
Cesser of right of executor to prove
Where a person appointed executor by a will--
7.
(a) survives the testator but dies without having taken out
probate of the will;
(b) is cited to take out probate of the will and does not
appear to the citation; or
(c) renounces the probate of the will,
his rights in respect of the executorship shall wholly cease, and
the representation to the testator and the administration of his
estate shall devolve and be committed in like manner as if that
person had not been appointed executor.
Express renunciation
8. (1) Any person who is or may become entitled to representation
may expressly renounce his right to the representation.
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(2) Renunciation may be made orally by the person renouncing
or his advocate, on the hearing of any petition or probate action,
or in writing signed by the person so renouncing and attested
either by an advocate or by any person before whom an affidavit
may be sworn.
Constructive renunciation
9. (1) Any person having or claiming any interest in the estate of
a deceased person, or any creditor of a deceased person, may,
without applying for representation, cause to be issued a citation
directed to the executor or executors appointed by the deceased's
will, or to any person appearing to have a prior right to representation,
calling upon the person cited to accept or renounce the right.
(2) Any person so cited may enter an appearance to the citation,
but if he makes default in appearance thereto, he shall be deemed
to have renounced the right; and if, having appeared, he does not
proceed to apply for representation, the person so citing may apply
for an order that the person cited, unless he applies for and obtains
a grant within a time limited by the order, shall be deemed to have
renounced his right thereto, and an order may be made accordingly.
(3) If the Court is satisfied that any person who is or may
become entitled to representation has been personally served with
the notice of hearing for the grant of representation, and the person
fails to appear or file any objection, he shall be deemed to have
renounced his right of representation.
Effect of renunciation
10.  The renunciation, whether made expressly in the manner
provided by section 8 or constructively in the manner provided by
section 9, shall preclude the person so renouncing from applying
thereafter for representation:
Provided that the Court may at any time allow the person so
renouncing to withdraw his renunciation for the purpose of taking
a grant, if it is shown that the withdrawal is for the benefit of the
estate or of those interested under the will or intestacy.
Withdrawal of renunciation
11. (1) Where an executor who has renounced probate has been
permitted, whether before or after the commencement of this Act,
to withdraw the renunciation and prove the will, the probate shall
take effect and be deemed always to have taken effect without
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prejudice to the previous acts and dealings of and notices to any
other personal representative who has previously proved the will
or taken out letters of administration, and a memorandum of the
subsequent probate shall be endorsed on the original probate or
letters of administration.
(2) This section applies whether the testator dies before or after
the commencement of this Act.
Executor of executor represents original testator
12. (1) An executor of a sole or last surviving executor of a
testator is the executor of that testator:
Provided that this provision shall not apply to an executor who
does not prove the will of his testator, and, in the case of an
executor who on his death leaves surviving him some other executor
of his testator who afterwards proves the will of that testator, it
shall cease to apply on probate being granted.
(2) So long as the chain of representation is unbroken, the last
executor in the chain is the executor of every preceding executor.
(3) The chain of representation is broken by--
(a) an intestacy;
(b) the failure of a testator to appoint an executor; or
(c) the failure to obtain probate of a will,
but is not broken by a temporary grant of administration if probate
is subsequently granted.
(4) Every person in the chain of representation to a testator--
(a) has the same rights in respect of the estate of that testator
as the original executor would have had if living; and
(b) is, to the extent to which the estate of that testator has
come to his hands, answerable as if he were an original
executor.
Grant of representation to a trust corporation
13. (1) Where a trust corporation is appointed an executor in a
will, either alone or jointly with another person, the Court may
grant probate to the corporation either solely or jointly with another
person, as the case may require, and the corporation may act as
executor accordingly.
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(2) Administration may be granted to any trust corporation either
solely or jointly with another person, and the corporation may act
as administrator accordingly.
(3) Representation shall not be granted to a syndic or nominee
on behalf of any trust corporation.
(4) Any officer authorized for the purpose by the corporation
or the directors or governing body thereof may swear affidavits,
give security, and do any other act or thing which the Court may
require on behalf of the trust corporation with a view to the grant
of representation to the corporation, and the acts of that officer
shall be binding on the corporation, and he shall be entitled to be
kept indemnified by the corporation in regard to matters so authorized
as aforesaid.
(5) This section applies whether the testator or intestate dies
before or after the commencement of this Act.
Death of one of several executors, etc.
14. (1) Where representation has been granted to more than one
executor or administrator, and one of them dies, the representation
of the estate shall accrue to the surviving executors or, except in
cases to which section 4 applies, administrator or administrators.
(2) On the death of an executor or administrator, administration
may be granted in respect of any estate not fully administered, and
in granting administration in any such case the Court shall be
guided by the same rules as apply to original grants.
Codicil propounded after probate
15.  Where, after probate has been granted, a codicil of the will
is propounded, separate probate may be granted of the codicil:
Provided that where the codicil expressly or impliedly revokes
the appointment of any executor to whom probate has been granted,
the probate shall be revoked, and a new probate granted of the will
and codicil together.
On failure of executors
Where--
16.
(a) no executor is appointed by a will;
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(b) the executor or all the executors appointed by will are
legally incapable of acting as such, or have renounced;
(c) no executor survives the testator;
(d) all the executors die before obtaining probate or before
having administered all the estate of the deceased; or
(e) the executors appointed by any will do not appear and
extract probate,
letters of administration with the will annexed may be granted to
such person as the Court deems fit to administer the estate:
Provided that a prior right to the grant shall belong to the
following persons in the following order:
(i) a universal or residuary legatee;
(ii) a personal representative of a deceased universal or
residuary legatee;
(iii) such person or persons, being beneficiaries under the
will, as would have been entitled to a grant of letters of
administration if the deceased had died intestate;
(iv) a legatee having a beneficial interest; and
(v) a creditor of the deceased.
Qualifications of administration with will annexed
17.  Section 15 shall apply in the case of grant of letters of
administration with the will annexed, in like manner as it applies
in the case of a grant of probate; and in any case where administration
with the will annexed is granted the will of a deceased shall be
performed and observed in a like manner as if probate thereof had
been granted to an executor.
Letters of administration until will is produced
18.  When no will of the deceased is forthcoming, but there is
reason to believe that there is a will in existence, letters of
a d m i n i s t r a t i o n may be granted, limited until the will or an
authenticated copy thereof is produced.
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Letters of administration pendente lite
19.  Pending any probate action, letters of administration may be
granted to such person as the Court may appoint, limited so that
the administrator shall not be empowered to distribute the estate,
and shall be subject to such control by, and direction of, the Court,
as the Court deems fit; and subject to that limitation the administrator
so appointed shall have all the rights and powers of a general
administrator.
Minors
20. (1) No representation shall be granted to a person while he
is a minor; but where a minor would, but for his minority, be
entitled to representation, letters of administration with or without
the will annexed may, subject to section 4, be granted to the
guardian of the person and property of the minor, or to such person
as the Court thinks fit, limited until the minor shall obtain a grant
himself.
(2) Where there are two or more minor executors or persons so
entitled, any grant made under subsection (1) shall be limited until
one or other of them shall obtain a grant.
Lunatics
21.  No representation shall be granted to a person of unsound
mind, but where any such person, if of sound mind, would be
entitled to representation, letters of administration with or without
the will annexed may, subject to section 4, be granted to the person
to whom the care of his estate has been lawfully committed, or
to such person as to the Court seems fit, for the use and benefit
of the person of unsound mind, until he becomes of sound mind
and obtains a grant to himself.
Letters of administration of trust property
22.  Where a person dies, leaving property in which he had no
beneficial interest on his own account, and does not leave a
representative who is able and willing to act, letters of administration,
limited to that property, may be granted to the person beneficially
interested in the property, or to some other person on his behalf.
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Letters of administration to collect and preserve property
23.  In any case in which it appears necessary for preserving the
property of a deceased person, the Court may grant to any person
whom the Court thinks fit, or to the Corporation, letters of
administration limited to the collection and preservation of the
property of the deceased, and giving discharge of debts due to his
estate, subject to the directions of the Court; and the person so
appointed shall have power to dispose of all assets of the estate
of a wasting or perishable nature and invest the proceeds of sale.
Grant with exception
24.  A grant of probate or letters of administration may be made
subject to such exception as the will or the circumstances of the
case require; and in any such case a further grant may be made
of the part of the estate so excepted.
Probate of copy or draft or of contents
25.  Where a will has been lost or mislaid after the death of the
testator, or where a will cannot for any sufficient reason be produced--
(a) if a copy or draft thereof is produced, and it appears that
the copy or draft is identical in terms with the original,
probate may be granted of the copy or draft, limited until
the original is admitted to probate; and
(b) if no copy or draft thereof is produced, probate may be
granted of the contents of the will, if they can be sufficiently
established, limited as above described, unless the will
is a privileged will not in writing.
Destroyed will
26.  Where a will has been destroyed, otherwise than by the act
or with the consent of the testator, probate may be granted of a
copy or draft thereof, or of the contents thereof, if they can be
sufficiently established.
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Administration with copy annexed of authenticated copy of
will proved abroad
27.  When a will has been proved and deposited in a court of
competent jurisdiction situated beyond the limits of Malaysia, and
a properly authenticated copy of the will is produced, probate may
be granted of the copy, or letters of administration may be granted
with a copy of that copy annexed.
Administration when limited grant expired and still some part
of estate unadministered
28.  When a limited grant has expired by effluxion of time or the
happening of the event or contingency on which it was limited,
and there is still some part of the deceased's estate unadministered,
letters of administration may be granted to those persons to whom
original grants might have been made.
Absent persons
29.  Where a person who would be entitled to representation is
absent from Malaysia, the following provisions shall apply:
(a) where an executor appointed by a will is absent from
Malaysia, and there is no other executor within Malaysia
willing to act, letters of administration with the will annexed
may be granted to a duly authorized attorney of the absent
executor, limited until he obtains probate for himself,
and in the meantime to any purpose to which the attorney's
authority is limited;
(b) where any person to whom letters of administration with
the will annexed might be granted under section 16 is
absent from Malaysia, letters of administration with the
will annexed may be granted to his duly authorized attorney,
limited as described in paragraph (a);
(c) where a person entitled to letters of administration in
case of intestacy is absent from Malaysia, and no person
equally entitled is willing to act, letters of administration
may be granted to an authorized attorney of the absent
person, limited until he shall obtain a grant himself; and
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(d) the Court shall have regard to section 7 of the *Diplomatic
and Consular Privileges Ordinance 1957 [Ord. 53 of 1957].
Discretion of Court as to persons to whom administration is
to be granted
30.  In granting administration the Court shall have regard to the
rights of all persons interested in the estate of the deceased person
or in the proceeds of sale thereof, and, in particular, administration
with the will annexed may be granted to a devisee or legatee; and
in regard to land settled previously to the death of the deceased,
and not by his will, administration may be granted to the trustees
of the settlement; and any such administration may be limited in
any way the Court thinks fit:
Provided that, where the deceased died wholly intestate as to his
estate, administration shall, if application is made for the purpose,
be granted to some one or more of the persons interested in the
residuary estate of the deceased, unless by reason of the insolvency
of the estate or other special circumstances the Court thinks it
expedient to grant administration to some other person.
Result of grant of administration
31.  Every person to whom administration of the estate of a deceased
person is granted shall, subject to the limitations contained in the
grant, have the same rights and liabilities and be accountable in
like manner as if he were the executor of the deceased.
Continuance of legal proceedings after revocation of temporary
administration
32.  If, while any legal proceedings are pending in any court by
or against the administrator to whom a temporary administration
has been granted, that administration is revoked, that court may
order that the proceedings be continued by or against the new
personal representative, in like manner as if the same had been
originally commenced against him, but subject to such conditions
and variations, if any, as that court directs.
*NOTE--This Act has been repealed-see section 5 of the Diplomatic Privileges (Vienna Convention)
(Amendment) Act 1999 [Act A1064].
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Caveat
33.  Any person having, or claiming to have, any interest may,
at any time after the death of a deceased person and before
representation has been granted to his estate, enter a general caveat
in the prescribed form, so that no representation shall be granted
without notice to the caveator; and after entry of any such caveat
no representation shall be made until the caveator has been given
opportunity to contest the right of any petitioner to representation.
Revocation of grant
34.  Any probate or letters of administration may be revoked or
amended for any sufficient cause.
Administration bond
35. (1) Unless the Court in any particular case otherwise orders--
(a) in the case of administrations, whether with or without
will annexed, the person to whom the grant is made or
on whose behalf it is sealed shall give security for the
due administration of the estate;
(b) no security shall be required where the gross value of the
estate does not exceed fifty thousand ringgit.
(2) The security shall ordinarily be by bond in the prescribed
form by the grantee and two sureties, in the amount at which the
estate within the jurisdiction is sworn, without deduction of any
debts due by the deceased, other than debts secured by mortgage
or charge; but the Court may for any sufficient reason increase or
decrease the number of sureties or dispense with them, and may
reduce the amount of the bond, and the Court in exercising its
discretion shall consider the standing of the parties, the nature of
the property, the amount of the debts and the extent of the
administrator's personal interest in the distributive share of the
estate.
(3) Where a trust corporation has obtained administration it
shall not be required to give security.
(4) When the administrator is entitled to the whole of the estate
after payment of the debts, sureties in the bond may ordinarily be
dispensed with by the Registrar.
(5) Sureties may be required by the Registrar to justify.
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Bond by creditor who is administrator
36.  When letters of administration are granted to a creditor, he
may be required to enter into a bond to pay the debts of the
deceased rateably, without preferring his own debt.
Assignment of bond
3 7 .  T h e Court may, if it appears that the condition of an
administration bond has been broken, order that it be assigned by
the Registrar to some named person, who shall thereupon be entitled
to sue on the bond under his own name on behalf of all persons
interested in the estate in respect of which the bond was executed,
as though it had originally been made in his favour.
Discharge of administration bond
38.  Where an administrator who has given a bond under this Act
or any written law hereby repealed is in possession of any part of
the estate of the testator or intestate and is prevented from fully
administering the estate by reason of inability to ascertain or to
communicate with the persons beneficially entitled to the residue
in his hands, he may exhibit in the Court an account showing how
the estate has been administered, and may, after the account has
been verified as the Court may direct, with the leave of the Court
pay into the Court, or if the Court so directs to a trust corporation,
the residue in his hands; and after any such payment the Court
shall, unless good cause is shown to the contrary, discharge the
administrator and his surety or sureties (if any) from the obligations
of the said bond.
PART III
ADDITIONAL POWERS OF COURT
Vesting of property of an intestate
39. (1) Where a person dies intestate his movable and immovable
property until administration is granted in respect thereof shall
vest in the Corporation in the same manner and to the same extent
as it vests in the Probate Judge in England.
(2) On the making of an order for a grant of administration by
the Court all such property shall vest in the administrator.
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Power of the Court relating to proving and renunciation
40.  The Court shall have power to summon any person named
as executor in any will to prove or renounce probate of the will
and do such other things concerning any will as the High Court
in England could do.
Order to bring in will, etc.
41.  The Court may, on the application of any person interested,
if it appears that there is reason to believe that any will or other
testamentary document of a deceased person is in the possession
or under the control of any person, or that any person has knowledge
of the existence of such a will or document, order that the person
do, within a time named, produce the will or document at the
Registry, or attend at a time named before a Court, for the purpose
of being examined in relation to that document.
Death of payee
42. (1) When funds in Court are by an order directed to be paid,
transferred or delivered to any person named or described in an
order, or in a certificate of the Registrar, except to a person therein
expressed to be entitled to those funds as trustee, executor, or
administrator, or otherwise than in his own right, or for his own
use, the funds, or any portion thereof for the time being remaining
unpaid, untransferred or undelivered may, unless the order otherwise
directs, on proof of the death of that person, whether on or after
or, in the case of payment directed to be made to a creditor as such,
before the date of the order, be paid, transferred or delivered to
the personal representatives of the deceased person, or to the
survivors or survivor of them.
(2) If no administration has been taken out to the estate of the
deceased person who has died intestate, and whose assets do not
exceed ten thousand ringgit, including the amount of the funds
directed to be so paid, transferred or delivered to him, the funds
may be paid, transferred or delivered to the person who, being
widower, widow, child, father, mother, brother or sister of the
deceased, would be entitled to take administration to his or her
estate upon a declaration by that person in the prescribed form.
Executor's or administrator's commission
43. (1) The Court may in its own discretion allow the executors
or administrators a commission not exceeding five per centum on
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the value of the assets collected by them, but in the allowance or
disallowance of the commission the Court shall be guided by its
approval or otherwise of their conduct in the administration of the
estate.
(2) The Registrar may in the course of the taking of the
administration accounts of executors or administrators exercise
the powers conferred on the Court by subsection (1).
Funeral and testamentary expenses allowed
44. (1) The Court shall allow the executors or administrators the
reasonable testamentary and other expenses incurred by them, and
also proper funeral expenses and all reasonable expenses of
subsequent religious ceremonies suitable to the station in life of
the deceased.
(2) The Registrar may in the course of the taking of the
administration accounts of executors or administrators exercise
the powers conferred on the Court by subsection (1).
Receiver pending grant
45.  Where any person dies leaving property within Malaysia, the
Court may, if it appears on the application by motion of the
Corporation or of any person claiming to be interested in the
property, or having the custody or control thereof at the time of
the death of the deceased, or being at that time an attorney or
employee of the deceased, that there is danger that the property
may be wasted, appoint the Corporation, or such other person as
the Court thinks fit, to be a receiver of the property pending a grant
of probate or letters of administration.
(Deleted by Act A912).
46.
Application of rules relating to receivers
47.  A receiver appointed under section 45 shall be subject to all
rules of court relating to receivers generally:
Provided that no trust corporation shall be required to furnish
security.
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Offence in relation to property of which receiver appointed
48.  Any person who, without lawful authority, removes or attempts
to remove from any place any portion of the property of which a
receiver has been appointed under section 45, or destroys, conceals
or refuses to yield up the same to the Corporation or the receiver,
as the case may be, shall be guilty of an offence and shall, on
conviction, be liable to a fine not exceeding two thousand ringgit
or to imprisonment for a term not exceeding six months or to both.
No suit against receiver
49.  No suit shall be brought against the Corporation or receiver
appointed under section 45 in relation to anything done or intended
to be done by him in respect of the property of the deceased in
exercise or intended exercise of the powers vested in him; but any
person aggrieved by anything so done or intended to be done, may
apply to the Court for directions in the matter, and the Court may
make such order in the premises as is just.
Receiver's lien
50.  A receiver appointed under section 45 shall have a lien upon
the property entrusted to him for all costs and expenses properly
incurred by him in the exercise of his duties as such receiver, and
for such remuneration as the Court may allow.
PART IV
RE-SEALING OF PROBATES AND LETTERS OF
ADMINISTRATION GRANTED OUT OF MALAYSIA
Interpretation
In this Part--
51.
"British Court in a foreign country" means any British Court
having jurisdiction out of the Commonwealth in pursuance of an
Order of Her Britannic Majesty in Council, whether made under
any Act of the Parliament of the United Kingdom or otherwise;
"the Commonwealth" shall, for the purposes of this Part, be
deemed to include in addition any country which the Yang
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di-Pertuan Agong may by notification published in the Gazette
direct to be included among the countries to which this Part applies;
"Court of Probate" means any court or authority by whatever
name designated, having jurisdiction in matters of probate;
"probate" and "letters of administration" include confirmation
i n Scotland and any instrument having, in any part of the
Commonwealth, the same effect as that which, under the law of
Malaysia, is given to probate or letters of administration respectively.
Powers of Court to re-seal
52.  Where a Court of Probate in any part of the Commonwealth
has, either before or after the passing of this Act, granted probate
or letters of administration in respect of the estate of a deceased
person, the probate or letters of administration so granted, or a
certified copy thereof, sealed with the seal of the court granting
the same, may, on being produced to and a copy thereof deposited
in the High Court, be sealed with the seal of the High Court, and
thereupon shall be of the like force and effect, and have the same
operation in Malaysia, as if it were a grant made by the High
Court:
Provided that--
(a) if it appears that the deceased was not, at the time of his
death, domiciled within the jurisdiction of the court from
which the grant issued, the seal shall not be affixed unless
the grant is such as the High Court would have made; and
(b) before the probate or letters of administration is sealed
with the seal of the High Court, the Court may require
such evidence, if any, as it thinks fit as to the domicile
of the deceased person.
Application to British Courts in foreign countries
53.  Any probate or letters of administration granted by a British
Court in a foreign country may be sealed in Malaysia in the
manner provided in section 52, and this Part shall apply accordingly
with the necessary modifications.
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Provisions of Estate Duty
54. (1) The provisions of the Finance Act 1992 [Act 476]*, of the
Federated Malay States as extended to apply throughout Peninsular
Malaysia by the Estate Duty (Transitional Provisions) (No. 2)
Ordinance 1946 [Ord.35 of 1946], including the penal provisions
thereof, shall apply as if the person who applies for sealing under
this Part were an executor within the meaning of that Enactment,
and section 45 of that Enactment shall apply mutatis mutandis to
the re-sealing of grants under this Part.
(2) In the application of subsection (1) to Sabah and Sarawak
references to the Estate Duty Enactment 1941, of the Federated
Malay States, and provisions thereof shall be construed as references
to the corresponding written laws and provisions of those laws in
force in Sabah and Sarawak.
Security on re-sealing letters of administration
55.  Before the sealing of letters of administration under this Part,
the administrator or his attorney shall give security by a bond in
the prescribed form for the due administration of the estate; and
that security shall be subject to section 35 relating to security to
be given in the case of a grant of letters of administration.
Security for creditors in Malaysia
56. (1) Where the deceased has carried on business or resided in
Malaysia within twelve months of his death, the Court may, on the
application of a creditor of the deceased or otherwise, before a
grant of probate or letters of administration is re-sealed require
adequate security to be given for the payment of debts due to
creditors residing in Malaysia.
(2) Any such creditor may give notice in writing to the Registrar,
requiring that he be notified of any application for the sealing of
a grant of probate under this Part; and no such grant shall be sealed
before the expiration of seven days after service on the creditor
of a notice in writing of an application for sealing.
*NOTE--This Act have replaced the Estate Duty Enactment 1941 [En. 7 of 1941] w.e.f.
01-11-1991see section 46 [Act 476].
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Notice of sealing
57.  Notice of the sealing of a grant under this Part shall be sent
forthwith by the Registrar to the court from which the grant is
issued.
Notice of revocation
58.  When notice has been received by the Court of the re-sealing
of a grant issued in Malaysia, notice of any revocation or alteration
of any such grant shall be sent forthwith by the Registrar to the
court so re-sealing the grant.
PART V
POWERS, RIGHTS, DUTIES AND OBLIGATIONS OF
REPRESENTATIVES
Rights of action of personal representative
59.  Subject to any other written law, a personal representative
has the same powers to sue in respect of all causes of action that
survive the deceased, and may exercise the same power for the
recovery of debts due to him at the time of his death as the
deceased had when living.
Power of personal representative to dispose of property
60. (1) In dealing with the property of the deceased his personal
representative shall comply with this section.
( 2 ) U n l e s s the Court otherwise directs, no sale, transfer,
conveyance or assent in respect of immovable property shall be
made without the concurrence of all the personal representatives
of the deceased; and subject as aforesaid, where there are several
personal representatives the powers of all may, in the absence of
any direction to the contrary in the will or grant of administration,
be exercised by any one of them.
(3) A personal representative may charge, mortgage or otherwise
dispose of all or any property vested in him, as he may think
proper, subject to any restriction which may be imposed in this
behalf by the will of the deceased, and subject to this section:
P r o v i d e d that an executor may dispose of any property
notwithstanding any restriction so imposed, if he does so in accordance
with an order of the Court.
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(4) An administrator may not, without the previous permission
of the Court--
(a) mortgage, charge or transfer by sale, gift, exchange or
otherwise any immovable property situate in any State
and for the time being vested in him; or
(b) lease any such property for a term exceeding five years.
(5) Nothing in this section shall affect subsection 15(2) of the
Trustees Act 1949 [Act 208].
(6) The disposal of property by a personal representative in
contravention of this section shall be voidable at the instance of
any other person interested in the property.
Purchase by personal representative of deceased's property
61.  If a personal representative purchases, either directly or
indirectly, any part of the property of the deceased, the sale is
voidable at the instance of any other person interested in the
property sold.
Duty of personal representative as to inventory
62.  The personal representative of a deceased person shall, when
lawfully required so to do, exhibit, by affidavit filed in the Court,
a true and perfect inventory and account of the movable and
immovable property of the deceased, and the Court shall have
power to require personal representatives to bring in inventories.
Transfer of assets to personal representative in country of
domicile of deceased for distribution
Where--
63.
(a) a person not having his domicile in Malaysia has died
leaving assets both in Malaysia and in the country in
which he had his domicile at the time of his death; and
(b) there has been a grant of representation in Malaysia with
respect to the assets there and a grant of representation
in the country of domicile with respect to assets in that
country,
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the personal representative in Malaysia, after having given due
notice and after having discharged at the expiration of the time
stated in the notice all lawful claims of which he has had notice,
may, instead of himself distributing any surplus or residue of the
deceased's property to persons residing out of Malaysia who are
e n t i t l e d thereto, transfer, with the consent of the personal
representative in the country of domicile, the surplus or residue
to him for distribution to those persons.
Protection of persons acting on probate or administration
64. (1) Every person making or permitting to be made any payment
or disposition in good faith under probate or letters of administration
shall be indemnified and protected in so doing, notwithstanding
any defect or circumstances whatsoever affecting the validity of
the probate and letters of administration.
(2) Where a grant of representation is revoked, all payments
and dispositions made in good faith to a personal representative
under the grant before the revocation thereof are a valid discharge
to the person making the same; and the personal representative
who acted under the revoked representation may retain and reimburse
himself in respect of any payments or dispositions made by him
which the person to whom representation is afterwards granted
might have properly made.
(3) All transfers and conveyances of any interest in movable
and immovable property made to a purchaser either before or after
the commencement of this Act by a person to whom probate or
letters of administration have been granted are valid, notwithstanding
any subsequent revocation or variation, either before or after the
commencement of this Act, of the probate or administration.
(4) This section takes effect without prejudice to any order of
the Court made before the commencement of this Act and applies
w h e t h e r the testator or intestate died before or after the
commencement.
Liability of a person fraudulently obtaining or retaining estate
of deceased
65.  If any person, to the defrauding of creditors or without full
valuable consideration, obtains, receives or holds any movable or
immovable property of a deceased person or effects the release of
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any debt or liability due to the estate of the deceased, he shall be
charged as executor in his own wrong to the extent of the property
received or coming into his hands, or the debt or liability released,
after deducting--
(a) any debt for valuable consideration and without fraud
due to him from the deceased person at the time of his
death; and
(b) any payment made by him which might properly be made
by a personal representative.
Liability of estate of personal representative
66.  Where a person as personal representative of a deceased
person (including the executor in his own wrong) wastes or converts
to his own use any part of the movable or immovable property of
the deceased, and dies, his personal representative shall, to the
extent of the available assets of the defaulter, be liable and chargeable
in respect of the waste or conversion, in the same manner as the
defaulter would have been if living.
PART VI
ADMINISTRATION OF ASSETS
Property of deceased is asset for payment of debts
67. (1) (a) The property of a deceased person, to the extent of
his beneficial interest therein, and the property of which a deceased
person in pursuance of any general power disposes by his will, are
assets for payment of his debts and liabilities, and any disposition
by will inconsistent with this Act is void as against the creditors;
and the Court shall, if necessary, administer the property for the
purpose of the payment of debts and liabilities.
(b) This subsection takes effect without prejudice to the rights
of incumbrancers.
(2) If any person to whom any such beneficial interest devolves
or is given, or in whom any such interest vests, disposes thereof
in good faith before an action is brought or process is sued out
against him, he shall be personally liable for the value of the
interest so disposed of by him, but that interest shall not be liable
to be taken in execution in the action or under the process.
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Duties of representative
68. (1) On the death of a person intestate as to any property, the
property shall be held by his personal representatives--
(a) as to the immovable property upon trust, subject to section
60, to sell the same; and
(b) as to the movable property upon trust to call in, sell and
convert into money such part thereof as may not consist
of money,
with power to postpone the sale and conversion for such a period
as the personal representatives, without being liable to account,
may think proper, and so that any reversionary interest be not sold
until it falls into possession, unless the personal representatives
see special reason for sale.
(2) Out of the net money to arise from the sale and conversion
of the said movable and immovable property (after payment of
costs), and out of the ready money of the deceased (so far as not
disposed of by his will, if any), the personal representatives shall
pay all such funeral, testamentary and administration expenses,
debts and other liabilities as are properly payable thereout, and out
of the residue of the said money the personal representatives shall
set aside a fund sufficient to provide for any pecuniary legacies
bequeathed by the will (if any) of the deceased.
(3) During the minority of any beneficiary or the subsistence
of any life interest, and pending the distribution of the whole or
any part of the estate of the deceased, the personal representatives
may invest the residue of the said money, or so much thereof as
may not have been distributed, in any investments for the time
being authorized by any written law for the investment of trust
money, with power, at the discretion of the personal representatives,
to change the investments for others of a like nature.
(4) The residue of the said money and any investments for the
time being representing the same, including (but without prejudice
to the trust for sale) any part of the estate of the deceased which
may be retained unsold and is not required for the administration
purposes aforesaid, is in this Part referred to as "the residuary
estate of the intestate".
(5) The income (including net rents and profits of immovable
property after payment of rates, taxes, rents, costs of insurances,
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ACT 97
repairs and other outgoings properly attributable to income) of so
much of the movable and immovable property of the deceased as
may not be disposed of by his will, if any, or may not be required
for the administration purposes aforesaid, may, however the estate
is invested, as from the death of the deceased, be treated and
applied as income, and for that purpose any necessary apportionment
may be made between tenant for life and remainderman.
(6) Nothing in this section affects the rights of any creditor of
the deceased or the rights of the Government in respect of estate
duty.
(7) Where the deceased leaves a will, this section has effect
subject to the will.
Administration of assets
69. (1) Where the estate of a deceased person is insolvent his
estate shall be administered in accordance with the rules set out
in Part I of the First Schedule.
(2) The right of retainer of a personal representative and his
right to prefer creditors may be exercised in respect of all assets
of the deceased, but the right of retainer shall only apply to debts
owing to the personal representative in his own right whether
solely or jointly with another person; and subject as aforesaid,
nothing in this Act affects the right of retainer of a personal
representative, or his right to prefer creditors.
(3) Where the estate of a deceased person is solvent his estate
shall, subject to rules of court and the provisions hereinafter contained
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 thereout in the order mentioned in Part II
of the First Schedule.
Charges on property of deceased to be paid primarily out of
the property charged
70. (1) Where a person dies possessed of, or entitled to, or, under
a general power of appointment, by his will disposes of, an interest
in property which at the time of his death is charged with the
payment of money, whether by way of legal mortgage, equitable
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charge or otherwise (including lien for unpaid purchase money),
and the deceased has not by will, deed or other document signified
a contrary or other intention, the interest so charged shall, as
between the different persons claiming through the deceased, be
primarily liable for the payment of the charge; and every part of
the said interest, according to its value, shall bear a proportionate
part of the charge on the whole thereof.
(2) No contrary or other intention shall be deemed to be signified--
(a) by general direction for the payment of debts or of the
debts of the testator out of his movable property or of his
residuary estate; or
(b) by a charge of debts upon any such estate,
unless the intention is further signified by words expressly or by
necessary implication referring to all or some part of the charge.
(3) Nothing in this section affects the right of a person entitled
to the charge to obtain payment or satisfaction thereof either out
of the other assets of the deceased or otherwise.
Contracts by personal representatives
71. (1) Subject to section 60 every contract entered into by a
personal representative in exercise of his powers of administering
an estate shall be binding on and be enforceable against and by
the personal representative for the time being of the deceased, and
may be carried into effect or be varied or rescinded by him, and,
in the case of a contract entered into by a predecessor, as if it had
been entered into by himself.
(2) Nothing in this section shall affect the right of any person
to require an assent, transfer or conveyance to be made.
(3) This section applies whether the testator or intestate died
before or after the commencement of this Act.
Assent or conveyance by personal representative
72. (1) A personal representative may assent to the vesting in any
p e r s o n who (whether by devise, bequest, devolution,
a p p r o p r i a t i o n or otherwise) may be entitled thereto, either
b e n e f i c i a l l y or as trustee or personal representative, of any
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immovable property to which the testator or intestate was entitled
or over which he exercised a general power of appointment by his
will, and which devolved upon the personal representative.
(2) No such assent shall be valid unless sanctioned by an order
of Court and made by a transfer in the form required by any
written law relating to the registration of title to land.
(3) (Deleted by P.U. 18/1967).
Right to follow property and powers of the Court in relation
thereto
73. (1) An assent, transfer or conveyance by a personal representative
to a person other than a purchaser does not prejudice the rights
of any person to follow the property to which the assent, transfer
or conveyance relates, or any property representing the same, into
the hands of the person in whom it is vested by the assent, transfer
or conveyance, nor of any other person (not being a purchaser)
who may have received the same or in whom it may be vested.
(2) Notwithstanding any such assent, transfer or conveyance
the Court may, on the application of any creditor or other person
interested--
(a) order a sale, exchange, mortgage, charge, lease, payment,
transfer or other transaction to be carried out which the
Court considers requisite for the purpose of giving effect
to the rights of the persons interested;
(b) declare that the person, not being a purchaser, in whom
the property is vested is a trustee for those purposes;
(c) give directions respecting the preparation and execution
of any conveyance or other instrument, or as to any other
matter required for giving effect to the order; or
(d) make any vesting order or appoint a person to convey in
accordance with provisions of the Trustees Act 1949.
(3) This section does not prejudice the rights of a purchaser or
a person deriving title under him, but applies whether the testator
or intestate died before or after the commencement of this Act.
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Powers of personal representative as to appropriation
74. (1) The personal representative may appropriate any part of
the movable or immovable property, including things in action, of
the deceased in the actual condition or state of investment thereof
at the time of appropriation in or towards satisfaction of any
legacy bequeathed by the deceased, or of any other interest or
share in his property, whether settled or not, as to the personal
representative may seem just and reasonable, according to the
respective rights of the persons interested in the property of the
deceased:
Provided that--
(a) an appropriation shall not be made under this section so
as to affect prejudicially any specific devise or bequest;
(b) an appropriation of property, whether or not being an
investment authorized by law or by the will, if any, of
the deceased for the investment of money subject to the
trust, shall not (save as hereinafter mentioned) be made
under this section except with the following consents:
(i) when made for the benefit of a person absolutely
and beneficially entitled to possession, the consent
of that person; and
(ii) when made in respect of any settled legacy, share
or interest, the consent of either the trustee thereof,
if any (not being also the personal representative)
or the person who may for the time being be entitled
to the income,
and if the person whose consent is so required as aforesaid
is a minor or a lunatic or defective, the consent shall be
given on his behalf by his parent, testamentary or other
guardian, committee or receiver, or if, in the case of a
minor, there is no such parent or guardian, by the Court
on the application of his next friend;
(c) no consent (save of such trustee as aforesaid) shall be
required on behalf of a person who may come into existence
after the time of appropriation, or who cannot be found
or ascertained at that time;
(d) if no committee or receiver of a lunatic or defective has
been appointed, then, if the appropriation is of an investment
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authorized by law or by the will, if any, of the deceased
for the investment of money subject to the trust, no consent
shall be required on behalf of the lunatic or defective;
and
(e) if, independently of the personal representative, there is
no trustee of a settled legacy, share or interest, and no
person of full age and capacity entitled to the income
thereof, no consent shall be required to an appropriation
in respect of the legacy, share or interest:
Provided that the appropriation is of an investment
authorized as aforesaid.
(2) Any property duly appropriated under the powers conferred
by this section shall thereafter be treated as an authorized investment,
and may be retained or dealt with accordingly.
(3) For the purposes of any such appropriation, the personal
representative may ascertain and fix the value of the respective
parts of the movable and immovable property and the liabilities
of the deceased as he may think fit, and shall for that purpose
employ a duly qualified valuer in any case where such employment
may be necessary, and may make any transfer or conveyance
(including an assent) which may be requisite for giving effect to
the appropriation.
(4) An appropriation made pursuant to this section shall bind
all persons interested in the property of the deceased whose consent
is not made requisite.
(5) The personal representative shall, in making the appropriation,
have regard to the rights of any person who may thereafter come
into existence, or who cannot be found or ascertained at the time
of appropriation, and of any other person whose consent is not
required by this section.
( 6 ) T h i s section does not prejudice any other power of
appropriation conferred by law or by the will (if any) of the
deceased, and where an appropriation is made under this section
in respect of a settled legacy, share or interest, the property
appropriated shall remain subject to all trusts for sale and powers
of leasing, disposition and management, or varying investments,
which would have been applicable thereto or to the legacy, share
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or interest in respect of which the appropriation is made, if no such
appropriation had been made.
(7) If after any immovable property has been appropriated in
purported exercise of the powers conferred by this section, the
person to whom it was transferred or conveyed disposes of it or
any interest therein, then, in favour of a purchaser, the appropriation
shall be deemed to have been made in accordance with the
requirements of this section and after all requisite consents, if any,
had been given.
(8) In this section, a settled legacy, share or interest includes
any legacy, share or interest to which a person is not absolutely
entitled in possession at the date of the appropriation, also an
annuity, and "purchaser" means a purchaser for money or money's
worth.
(9) This section applies whether the deceased died intestate or
not, and whether before or after the commencement of this Act,
and extends to property over which a testator exercises a general
power of appointment, and authorizes the setting apart of a fund
to answer an annuity by means of the income of that fund or
otherwise, but is subject to section 60.
Power to appoint trustees of minor's property
75. (1) Where a minor is absolutely entitled under the will or on
the intestacy of a person dying before or after the commencement
of this Act (in this subsection called "the deceased") to a devise
or legacy, or to the residue of the estate of the deceased, or any
share therein, and the devise, legacy, residue or share is not under
the will, if any, of the deceased, devised or bequeathed to trustees
for the minor, the personal representatives of the deceased may
appoint a trust corporation or two or more individuals not exceeding
four (whether or not including the personal representatives or one
or more of the personal representatives), to be the trustee of the
devise, legacy, residue or share for the minor, and may, subject
to section 60, execute or do any assurance or thing requisite for
vesting the devise, legacy, residue or share in the trustee so appointed;
and on such an appointment the personal representatives, as such,
shall be discharged from all further liability in respect of the
devise, legacy, residue, or share, and the same may be retained in
its existing condition or state of investment, or may be converted
Laws of Malaysia
38
ACT 97
into money, and the money may be invested in any authorized
investment.
(2) Where a personal representative has before the commencement
of this Act retained or sold any such devise, legacy, residue or
share, and invested the same or the proceeds thereof in any
investments in which he was authorized to invest money subject
to the trust, then, subject to any order of the Court made before
the commencement, he shall not be deemed to have incurred any
liability on that account, or by reason of not having paid or transferred
the money or property into Court.
Obligations of personal representative as to giving possession
of land and powers of the Court
76. (1) A personal representative, before giving an assent or making
a conveyance in favour of any person entitled, may permit that
person to take possession of the land, and the possession shall not
prejudicially affect the right of the personal representative to take
or resume possession, nor his power to convey the land as if he
were in possession thereof, but subject to the interest of any lessee,
tenant or occupier in possession or in actual occupation of the
land.
(2) Any person who, as against the personal representative,
claims possession of immovable property, or the appointment of
a receiver thereof, or a transfer or conveyance thereof, or an assent
to the vesting thereof, or to be registered as proprietor thereof,
may apply to the Court for directions with reference thereto, and
the Court may make such vesting or other order as may be deemed
proper, and the provisions of the Trustees Act 1949, relating to
vesting orders and to the appointment of a person to transfer or
convey, shall apply.
(3) This section applies whether the testator or intestate dies
before or after the commencement of this Act.
Power to postpone distribution
77.  Subject to the foregoing provisions, a personal representative
is not bound to distribute the estate of the deceased before the
expiration of one year from the death.
Probate and Administration
39
PART VII
POWERS OF REGISTRAR, DEPUTY REGISTRARS,
SENIOR ASSISTANT REGISTRARS AND
ASSISTANT REGISTRARS
Powers of Registrar
7 7  A . ( 1 ) T h e Registrar, Deputy Registrars, Senior Assistant
Registrars and Assistant Registrars of the High Court, other than
Assistant Registrars constituted as such under subsection (2), shall
h a v e jurisdiction to seal any grant of probate or letters of
administration granted by any court or authority in the Commonwealth
outside Malaysia by whatever name designated, having jurisdiction
in matters of probate and to hear and determine applications for,
and to grant, probate or letters of administration--
(a) in all cases which are uncontested; and
(b) in all contested cases where it appears that the gross
value of the estate of the deceased does not exceed twenty-
five thousand ringgit.
(2) All First Class Magistrates, other than ex officio Magistrates,
shall be Assistant Registrars of the High Court for the purpose of
hearing and determining applications for probate or letters of
administration under this section where it appears that the gross
value of the estate of the deceased does not exceed twenty-five
thousand ringgit, and shall have jurisdiction to grant probate or
letters of administration in those cases accordingly.
(3) No grant of probate or letters of administration shall be
invalid by reason of the assets and effects of the deceased being
subsequently found to be of greater value than twenty-five thousand
ringgit but the grantee shall be required to give such security for
the due administration of the estate as is appropriate to the enhanced
value.
(4) Unless in such case as is referred to in subsection (3) the
grantee complies without delay with the requirements of that
subsection the grant may be revoked at the instance of the Registrar
or on the application of any person having any interest as beneficiary
or creditor in the assets of the estate.
(5) Unless the Registrar in any particular case otherwise orders
no security shall be required where the gross value of the estate
Laws of Malaysia
40
ACT 97
does not exceed ten thousand ringgit except where the person for
whose use and benefit the grant is made is a minor.
(6) This section shall have no application to an estate which
falls to be dealt with under the Small Estates (Distribution) Act
1955.
PART VIII
APPOINTMENT, POWERS AND DUTIES OF OFFICAL
ADMINISTRATOR
(Deleted by Act A912).
78-80.
Grant of letters of administration to the Corporation in cases
of delay
In the following cases, namely:
81.
(a) where, after the expiration of six months from the death
of a deceased person, no application has been made for
probate or letters of administration to his estate;
(b) where any such application, though made within the said
six months, has not within that period been proceeded
with, or has been withdrawn or refused;
(c) where a receiver may be appointed under section 45, but
it appears that the appointment would not be a sufficient
protection for the estate; or
(d) where, after the death of a last surviving executor or
administrator of a deceased person's estate, six months
have elapsed and no application for the representation of
the estate has been made,
letters of administration with or without the will annexed may be
granted to the Corporation, or to such other person as the Court
thinks fit:
Provided that nothing in this section shall be construed so as to
prevent the Corporation from applying for or being granted letters
of administration of the estate of a deceased person with or without
the will annexed before the expiration of a period of six months
of the death of the deceased.
Probate and Administration
41
(Deleted by Act A912).
82-85.
Undistributed funds may be passed to the Corporation
86. (1) Where upon the conclusion of the administration of the
estate of a person dying testate or intestate, there remain in the
hands of any personal representative funds of which he is unable
to dispose immediately by distribution in accordance with law by
reason of the inability of the person entitled to give a discharge,
through lack of legal capacity or otherwise, or by reason of any
other cause which to the Corporation shall appear sufficient, the
personal representative may, if the Corporation consents to accept
the same, pay the funds to the Corporation which shall not be
required to make any inquiry whether the administration has been
conducted in accordance with law, but may accept the same for
the benefit of that person and may for the purpose exercise all the
powers conferred on the Corporation under section 19 of the Public
Trust Corporation Act 1995.
(2) The receipt of the Corporation may be accepted by the
personal representative and shall constitute a full and sufficient
discharge in respect of those funds.
(3) (Deleted by Act A912).
(Deleted by Act A912).
87-89.
Saving and transitional
90. (1) Nothing in this Act shall affect the validity of proceedings
instituted under the laws repealed by this Act but the same shall
be carried on in accordance with this Act and any such proceeding
may be amended as may appear to be necessary or proper to bring
it into conformity with this Act.
(2) (Deleted by Act A912).
Laws of Malaysia
42
ACT 97
FIRST SCHEDULE
[Section 69]
PART I
RULES AS TO PAYMENT OF DEBTS WHERE ESTATE
IS INSOLVENT
The funeral, testamentary, and administration expenses have priority.
1.
2.  Subject as aforesaid, the same rules shall prevail and be observed as to the
respective rights of secured and unsecured creditors and as to debts and liabilities
provable and as to the valuation of annuities and future and contingent liabilities
respectively, and as to the priorities of debts and liabilities, as may be in force
for the time being under the law of bankruptcy with respect to the assets of
persons adjudged bankrupt.
PART II
ORDER OF APPLICATION OF ASSETS WHERE
THE ESTATE IS SOLVENT
1.  Property of the deceased undisposed of by will, subject to the retention
thereout of a fund sufficient to meet any pecuniary legacies.
2.  Property of the deceased not specifically devised or bequeathed but included
(either by a specific or general description) in a residuary gift, subject to the
retention out of the property of a fund sufficient to meet any pecuniary legacies,
so far as not provided for as aforesaid.
3.  Property of the deceased specifically appropriated or devised or bequeathed
(either by specific or general description) for the payment of debts.
4.  Property of the deceased charged with, or devised or bequeathed (either by
a specific or general description) subject to a charge for the payment of debts.
The fund, if any, retained to meet pecuniary legacies.
5.
Property specifically devised or bequeathed, rateably according to value.
6.
7.  Property appointed by will under a general power, rateably according to
value.
The following provisions shall also apply:
8.
(a) the order of application may be varied by the will of the deceased;
(b) this part of this Schedule does not affect the liability of land to answer
the death duty imposed thereon in exoneration of other assets.
Probate and Administration
43
SECOND SCHEDULE
[Section 89]
Reference
Short title
Extent of repeal
S.S. Cap. 51
...
The Probate and Administration
The whole
Ordinance
F.M.S. Cap. 8
...
The Probate and Administration
The whole
Enactment
Johore Enactment
The Probate and Administration
The whole
No. 22
Enactment
Kedah Enactment
Enactment No. 1 (Administration
The whole
No. 1
of Estates)
Terengganu
...
The Probate and Administration
The whole
Enactment
Enactment
No. 22 of 1356
Kelantan
...
The Administration Enactment
The whole
Enactment
1930
No. 2 of 1930
Perlis No. 1 of
The Administration of Estates
The whole
1338
Enactment 1338
F.M. Ordinance 34
The Small Estates (Distribution)
Part IV
of 1955
Ordinance 1955
thereof
F.M. Ordinance 43
The Courts Ordinance 1948
Section 105
of 1948
Sabah Cap. 109 ...
The Probate and Administration
The whole
Ordinance
Sarawak Cap. of 80, The Administration of Estates
The whole
1948 Revised
Ordinance
Edition
Laws of Malaysia
44
ACT 97
LAWS OF MALAYSIA
Act 97
PROBATE AND ADMINISTRATION
ACT 1959
LIST OF AMENDMENTS
Amending law
Short title
In force from
Act 7/1964--s. 5
Courts of Judicature Act 1964
16-09-1963
L.N. 477/1965--
National Land Code (Repeals and
23-12-1965
Art. 3(3)
Amendments) Order 1965
P.U. 18/1967
National Land Code (Repeals and
12-01-1967
Amendments) Order 1967
Act A128
Probate and Administration
23-06-1972
(Amendment and Extension)
Act 1972
Act A246
Probate and Administration
15-03-1974
(Amendment) Act 1974
Act 160
Malaysia Currency (Ringgit) Act
29-08-1975
1975
Act A400
Probate and Administration
10-06-1977
(Amendment) Act 1977
Act A508
Probate and Administration
06-02-1981
(Amendment) Act 1981
Act A569
Probate and Administration
16-12-1983
(Amendment) Act 1983
Act A912
Probate and Administration
01-08-1995
(Amendment) Act 1995
Probate and Administration
45
LAWS OF MALAYSIA
Act 97
PROBATE AND ADMINISTRATION
ACT 1959
LIST OF SECTIONS AMENDED
Section
Amending authority
In force from
1
Act A128
23-06-1972
Act A569
16-12-1983
2
Act
7/1964
16-09-1963
Act
A128
23-06-1972
Act
A569
16-12-1983
Act
A912
01-08-1995
8
Act A128
23-06-1972
9
Act A128
23-06-1972
16
Act A128
23-06-1972
23
Act A912
01-08-1995
27
Act A128
23-06-1972
29
Act A128
23-06-1972
35
Act A128
23-06-1972
Act A508
06-02-1981
Act 160
29-08-1975
Part III
Act A128
23-06-1972
(Heading)
39
Act A128
23-06-1972
Act A246
15-03-1974
Act A912
01-08-1995
42
Act A128
23-06-1972
Act 160
29-08-1975
45
Act A128
23-06-1972
Act A912
01-08-1995
Laws of Malaysia
46
ACT 97
Section
Amending authority
In force from
46
Act A912
01-08-1995
48
Act 160
29-08-1975
Act A912
01-08-1995
49
Act A912
01-08-1995
51
Act A128
23-06-1972
52
Act A128
23-06-1972
53
Act A128
23-06-1972
54
Act A128
23-06-1972
56
Act A128
23-06-1972
58
Act A128
23-06-1972
60
P.U. 18/1967
12-01-1967
63
Act A128
23-06-1972
72
L.N. 477/1965
23-12-1965
P.U. 18/1967
12-01-1967
Act A128
23-06-1972
77A
Act 160
29-08-1975
78
Act A128
23-06-1972
Act A569
16-12-1983
Act A912
01-08-1995
79
Act A912
01-08-1995
80
Act A128
23-06-1972
Act A912
01-08-1995
81
Act A912
01-08-1995
82
Act A912
01-08-1995
83
Act
A128
23-06-1972
Act
A400
10-06-1977
Act
A569
16-12-1983
Act
A912
01-08-1995
Probate and Administration
47
Section
Amending authority
In force from
84
Act A400
10-06-1977
Act A912
01-08-1995
85
Act
A128
23-06-1972
Act
A400
10-06-1977
Act
A569
16-12-1983
Act
A912
01-08-1995
86
Act
A128
23-06-1972
Act
A400
10-06-1977
Act
A569
16-12-1983
Act
A912
01-08-1995
87
Act A128
23-06-1972
Act A912
01-08-1995
88
Act A912
01-08-1995
89
Act A912
01-08-1995
90
Act A128
23-06-1972
Act A912
01-08-1995
Second Schedule
Act A128
23-06-1972
DICETAK OLEH
PERCETAKAN NASIONAL MALAYSIA BERHAD,
KUALA LUMPUR
BAGI PIHAK DAN DENGAN PERINTAH KERAJAAN MALAYSIA