LAWS OF MALAYSIA
REPRINT
Act 98
SMALL ESTATES
(DISTRIBUTION) ACT 1955
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
Laws of Malaysia
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ACT 98
SMALL ESTATES (DISTRIBUTION)
ACT 1955
First enacted ... ... ... ... ... ... ... ...
1955 (Ordinance
No. 34 of 1955)
Revised
... ... ... ... ... ... ... ... ...
1972 (Act 98 w.e.f.
1 November 1972)
PREVIOUS REPRINTS
First Reprint
... ... ... ... ...
1994
Second Reprint
... ... ... ... ...
2000
Small Estates (Distribution)
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LAWS OF MALAYSIA
Act 98
SMALL ESTATES (DISTRIBUTION)
ACT 1955
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1.
Short title and commencement
2.
Interpretation
PART II
ADMINISTRATION OF SMALL ESTATES
3.
Application of Part and definition of small estate
4.
Jurisdiction in respect of small estates
5.
High Court to grant probate of testamentary dispositions relating to
small estates
6.
High Court to have power to reseal a grant of representation affecting
a small estate
7.
Power of the Registrar to transfer petitions relating to an intestate small
estate to a Collector
8.
Petition for distribution
9.
Service of notice of petition for distribution
10.
Appointment of representatives of minors or persons of unsound mind
11.
Place of hearing of petition for distribution
11A. Collector 's power to summon and examine witnesses, administer oaths
or affirmations, and compel production and delivery of documents
12.
Procedure on hearing and the duties of Collector thereon
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ACT 98
Section
13.
Order for distribution of small estate
14.
Determination of collateral disputes
15.
Powers of the Collector in distributing the estate
16.
Procedure after hearing
17.
Subsequent applications
18.
Duty of Settlement Officer and penghulu
19.
Reference on point of law or custom
PART III
SPECIAL PROVISIONS RELATING TO NEGERI
SEMBILAN
20.
Application of Part
21.
Interpretation
22.
All tribal estates to be "small"
23.
Jurisdiction
24.
Principles of distribution
25.
Appeals
PART IV
SPECIAL PROVISIONS RELATING TO SABAH
26.
Application of Part
26A. Certain native estates to be "small"
26B. Small estates of natives of Sabah
26C. Procedure of Native Courts in Sabah
26D. Sale of native land in Sabah
PART V
MISCELLANEOUS
27.
Estate partly administered
28.
Exclusion of provisions of certain other laws
29.
Appeal
30.
Regulations
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Section
31.
Advocates
32.
Repeal
33.
Saving and transitional
34.
Special provisions for Malacca and Penang
FIRST SCHEDULE
SECOND SCHEDULE
THIRD SCHEDULE
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ACT 98
Small Estates (Distribution)
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LAWS OF MALAYSIA
Act 98
SMALL ESTATES (DISTRIBUTION)
ACT 1955
An Act relating to the distribution of small estates of deceased
persons and matters incidental thereto.
[Kelantan--1 December 1955, L.N. 494/1955;
Johore, Negeri Sembilan, Pahang, Perak, Perlis, Selangor and
Terengganu--1 July 1957, L.N. 258/1957;
Kedah--1 August 1962, L.N. 170/1962;
Penang--23 December 1965, Pg. L.N. 35/1965;
Malacca--30 December 1965, M.L.N. 65/1965;
Federal Territory of Labuan--1 January 1989,
P.U. (B) 724/1988]
PART I
PRELIMINARY
Short title and commencement
1. (1) This Act may be cited as the Small Estates (Distribution)
Act 1955, and shall come into force in relation to any State on such
date as the Minister may, by notification in the Gazette, appoint
and the Minister 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 modification thereto as he deems necessary
in relation to its application to the estates of deceased persons who
at the time of their death were natives of Sarawak.
(2A) This Act shall come into force in the Federal Territory of
Labuan on such date as the Minister may by order specify, and
such order may provide for such modifications to this Act in its
application in the Federal Territory of Labuan as the Minister may
deem necessary, and also for the consequential repeal or amendment
of any other written law in so far as it applies in the Federal
Territory of Labuan.
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Interpretation
In this Act, unless the context otherwise requires--
2.
"Collector" means--
(a) in relation to Sarawak, the District Officer appointed for
a district and includes any Assistant District Officer or
Sarawak Administrative Officer appointed for the district
or part thereof;
(b) in relation to Sabah, the Collector of Land Revenue
appointed for a district and includes any Assistant Collector
of Land Revenue appointed for the district or part thereof;
and
(c) in relation to the States in Peninsular Malaysia, the Land
Administrator appointed for a district and includes any
Assistant District Land Administrator appointed for the
district or part thereof;
"Director General of Lands and Mines" means the Director
General of Lands and Mines (Federal) and, in relation to an estate
the whole of the immovable property comprised in which is situated
in Sabah or Sarawak, includes the Director of Lands and Surveys,
Sabah, or the Director of Lands and Surveys, Sarawak, as the case
may require;
"Director of Lands and Mines" means a Director of Lands and
Mines (State) and includes the Director of Lands and Surveys for
Sabah and the Director of Lands and Surveys for Sarawak;
"distribution order" means an order for the distribution of a
small estate made under this Act;
"High Court" means the High Court in Malaya or the High
Court in Sabah and Sarawak, as the case may require;
"native" means a native of Sabah or a native of Sarawak;
"native of Sabah" has the meaning assigned to the word "native"
in the Interpretation (Definition of Native) Ordinance of Sabah
[Cap. 64];
"native of Sarawak" has the meaning assigned to the word "native"
in the Interpretation Ordinance of Sarawak [Cap. 1];
"Native Title" has the meaning assigned thereto in the Land
Ordinance of Sabah [Cap. 68];
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*"Official Administrator" has the meaning assigned to it in the
Probate and Administration Act 1959 [Act 97];
"penghulu", with reference to Sabah and Sarawak, shall be
construed as a reference to a native chief by whatever style called;
"petition for distribution" means a petition for the distribution
of a small estate lodged under section 8;
"prescribed" means prescribed by regulations made by the Minister
under section 30;
"purchaser" means a person who, at the date of the filing by
himself, or by any other person, of a petition for distribution, is
in occupation of any land registered in the name of the deceased,
whether as sole proprietor or co-proprietor, by virtue of an agreement
for the sale of that land or any interest therein by the deceased to
himself or to any person through whom he claims;
"Registrar" means the Registrar of the High Court and includes
a Deputy Registrar, a Senior Assistant Registrar and an Assistant
Registrar of the High Court;
"Registrar of Titles" includes a Registrar or Assistant Registrar
appointed under section 3 of the Land Code of Sarawak [Cap. 81];
"State" includes a Federal Territory.
PART II
ADMINISTRATION OF SMALL ESTATES
Application of Part and definition of small estate
3. (1) This Part shall have effect throughout Malaysia.
(2) For the purposes of this Act a small estate means an estate
of a deceased person consisting wholly or partly of immovable
property situated in any State and not exceeding six hundred thousand
ringgit in total value.
(Proviso omitted by P.U. (B) 217/1974).
(3) For the purposes of this section the value of the property
comprised in an estate shall be deemed to be its value at the date
of the filing of a petition for probate or letters of administration
or lodging of a petition for distribution under this Act in respect
of the estate or, if more than one such petition has been filed or
lodged in respect of the same estate, at the date of the filing or
lodging of the earliest petition.
*NOTE--This definition has been deleted in Probate and Administration Act 1959 [Act 97] and
has been replaced by "Corporation"--see paragraph 2(a) and (b) [Act A912]. See also subsection
43(3), Public Trust Corporation Act 1995 [Act 532].
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(4) In ascertaining the value of the property comprised in an
estate no deduction shall be made on account of the debts of the
deceased but there shall not be included in the estate for those
purposes any property which the deceased held or was entitled to
as a trustee and not beneficially:
Provided that any land held in the name of the deceased by any
form of registered title shall be deemed to be part of his estate
whether subject to caveat or not unless the land is expressly registered
in his name as representative or as trustee or as guardian.
Jurisdiction in respect of small estates
4. (1) Save as in this Act otherwise provided no interest in any
small estate shall devolve on or vest in any person by virtue of
any instrument other than an order or grant made under this Act.
(2) The Collector of the district where the greater part in value
of the property is situated shall have exclusive jurisdiction to deal
with the distribution and administration of the whole estate wherever
situated:
Provided that the Director of Lands and Mines where all the
property is situated in one State or the Director General of Lands
and Mines where the property is situated partly in one State and
partly in another, may upon application duly made in that behalf,
order that any petition under this Act shall be heard and determined
by the Collector of any other district, notwithstanding that the
property in that district consists solely of movable property, whenever
it is made to appear that such an order will tend to the general
convenience of the parties or witnesses or is otherwise expedient
for the ends of justice; and the Collector shall thereupon have
exclusive jurisdiction to order distribution of the estate and, if
necessary, to grant letters of administration thereof.
(3) Any order made by the Director of Lands and Mines or the
Director General of Lands and Mines under subsection (2) shall
be final and not subject to any appeal.
(4) A copy of any order made under subsection (2) shall be sent
to the applicant and to any Collector who in the opinion of the
Director of Lands and Mines or the Director General of Lands and
Mines, as the case may be, is affected thereby.
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(5) The Collector for each district in which is situated any part
of the immovable property comprised in an estate in respect of
which a petition for distribution has been lodged shall determine
the value of that property, as at the date of lodging the petition,
or, if more than one petition has been lodged, as at the date of
lodging the earliest petition, and every such valuation shall be
conclusive for the purposes of this Act.
High Court to grant probate of testamentary dispositions relating
to small estates
5. (1) Subject to this section, nothing in this Act shall affect the
exclusive jurisdiction of the High Court to grant probate of any
will or testamentary disposition or letters of administration in any
case in which the deceased has left a valid will or other valid
testamentary disposition in respect of a small estate or part thereof
and the grant when made shall have effect in all respects as if the
estate had not been a small estate.
(2) If upon the hearing of any petition for probate or for letters
of administration with a will or copy of a will annexed, probate
or letters of administration with the will or a copy of a will
annexed are not granted the Court may if satisfied that all the
necessary parties are before the Court--
(a) grant letters of administration to any person to whom
letters would have been granted on an intestacy if the
estate had not been a small estate;
(b) direct that a petition for distribution of the estate be
lodged under section 8; or
(c) order any Collector named in the order to proceed with
the distribution of the estate as if a petition therefor had
been duly lodged.
(3) Where any order is made under paragraph (2)(c) the Collector
therein named shall, upon receipt of a copy of the order, forthwith
proceed to distribute the estate in accordance with this Act.
High Court to have power to reseal a grant of representation
affecting a small estate
6.  Nothing in this Act shall affect the exclusive jurisdiction of
the High Court to reseal any grant of representation made outside
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Malaysia in respect of the estate of a deceased person and where
any grant has been resealed affecting a small estate, the grant shall
have effect as if the estate had not been a small estate.
Power of the Registrar to transfer petitions relating to an intestate
small estate to a Collector
7. (1) If the Registrar is satisfied that any intestate estate in respect
of which a petition for letters of administration has been filed in
the High Court is a small estate he shall transfer such petition to
the Collector having jurisdiction to order distribution of that estate
under section 4 and the Collector may at his discretion either treat
the petition as if it were a petition for distribution of the estate
under section 8 or if the case so requires direct that a fresh petition
under that section shall be lodged.
(2) If at any stage of any proceedings in the High Court relating
to the estate of a deceased person it appears--
(a) that the deceased was a member of a tribe within the
meaning of Part III or that any part of the estate was
property affected by a tribal custom within the scope of
Part III; or
(b) that the deceased at the time of his death was a native
of Sabah,
the proceedings shall be stayed and the matter shall be referred to
the Director General of Lands and Mines and the proceedings shall
not be continued in the High Court unless and until the Director
General of Lands and Mines has certified in writing under his hand
that the estate is not, or is not deemed to be, a small estate under
this Act.
Petition for distribution
8. (1) Where any person has died intestate leaving a small estate,
any person claiming to be interested in the estate as a beneficiary,
or a creditor, or a purchaser, or in the circumstances mentioned
in subsection 18(1) the penghulu or a Settlement Officer of the
district or of the locality in which any land of which the deceased
was the proprietor is situated, or the Corporation*, may lodge with
the Collector having jurisdiction under section 4 a petition, in the
prescribed form, for the distribution of the estate.
*NOTE--The original provision which used the word "Official Administrator" is now construed
as "Corporation"see subsection 43(3), Public Trust Corporation Act 1995 [Act 532].
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(2) The petitioner shall deliver to the Collector all issue documents
of title to immovable property relating to the estate in his possession
or power.
(3) The Collector shall thereupon give notice to the principal
registry of the High Court of the lodging with him of the petition
and shall ascertain from the registry whether any petition relating
to the estate has, before that petition having been lodged, been
filed in the High Court or lodged with any other Collector.
(4) If no such petition has been so filed or lodged the Collector
shall investigate the facts and matters alleged in the petition and
determine whether the estate is or is not a small estate and whether
he has jurisdiction under section 4.
(5) For the purpose of determining whether any estate is or is
not a small estate the Collector shall value the movable property
comprised therein wherever situate.
(6) The valuation of the movable property comprised in an
estate by the Collector under this section shall be conclusive for
the purpose of this Act.
(7) If the Collector decides that the estate is not a small estate
he shall transfer the petition, with or without amendment, to the
High Court and the petition shall, unless the Court otherwise
directs, be treated therein as if it were a petition for letters of
administration upon an intestacy;
Provided that this subsection shall not apply in any case where
a petition in respect of the estate has been transferred to the
Collector under subsection 7(1).
(8) If the Collector decides that the estate is a small estate but
that the greater part in value of the property comprised therein is
not situated in his district, he shall either transfer the petition to
the Collector for the district in which in his opinion the greater
part in value of the property is situated or apply to the Director
of Lands and Mines or the Director General of Lands and Mines,
a s the case may require, for an order to be made under
subsection 4(2).
(9) If the Collector has notice that any other petition for
distribution had been previously lodged in respect of the estate
with any other Collector or that any application has been made to
the Director of Lands and Mines or the Director General of Lands
and Mines under subsection 4(2) or that any petition for probate
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or letters of administration with a will or a copy of a will annexed
has been filed in the High Court in respect of the estate he shall
forthwith stay all proceedings upon the petition before him until
either, as the case may be, that other petition has been transferred
to him under subsection (8) or an order has been made by the Court
under paragraph 5(2)(c) directing him to distribute the estate or
an order has been made under subsection 4(2) conferring jurisdiction
upon him.
Service of notice of petition for distribution
9. (1) Subject to section 8 the Collector having jurisdiction in
respect of the small estate shall, as soon as possible after the
lodging of the petition for distribution thereof, cause notice of the
petition and of the date and place of hearing to be served in the
prescribed manner upon all persons who are named in the petition
as beneficiaries of or claimants to the estate or any interest therein
or who appear to the Collector to be interested in the distribution
of the estate:
Provided that no proceedings under this Act shall be invalid on
account of any omission or failure to serve any such notice upon
any person unless the omission or failure has in the opinion of the
High Court occasioned any substantial injustice.
(2) The Collector shall also cause notice of the petition and of
the date and place of the hearing thereof to be published in such
manner and at such times and places as may be prescribed.
Appointment of representatives of minors or persons of unsound
mind
10. (1) Where any person, who is named in the petition as a
beneficiary of or claimant to the estate or any interest therein or
who appears to the Collector to be interested in the distribution
of the estate, is or appears to the Collector to be a minor or a
person of unsound mind the Collector may, by an order in writing,
appoint some suitable and proper person to be the guardian of the
minor or person of unsound mind for the purposes of all proceedings
for the distribution of the estate under this Act and all such proceedings
shall be as effective and binding upon all persons concerned as if
that person had not been a minor or person of unsound mind.
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(2) In appointing a person to be a guardian under this section,
the Collector shall have regard to any personal law or custom
affecting the minor or person of unsound mind.
Place of hearing of petition for distribution
11. (1) Every petition for distribution shall be heard in such place
in his district as the Collector having regard to the convenience
of the parties and witnesses generally may appoint.
(2) Every place in which a petition for distribution is heard
shall during the hearing be deemed an open and public place to
which the public shall have access.
(3) Without prejudice to the extent of his powers under subsection
(1), where the question, or one of the questions, at issue in any
hearing of a petition for distribution relates to a particular lot of
land the Collector may, in his discretion, hold the hearing, or any
part thereof at a convenient place on or near to that land.
Collector's power to summon and examine witnesses, administer
oaths or affirmations and compel production and delivery of
documents
11A. (1) The Collector shall, in relation to the hearing of a petition
for distribution, have all the powers of a Magistrates' Court in the
exercise of its civil jurisdiction for the summoning and examination
of witnesses (including any person on whom a notice of the petition
is required to be served under section 9), for the administration
of oaths or affirmations and for compelling the production and
delivery to him of all documents, including issue documents of
title and other documents evidencing title.
(2) Every person required to appear before, or to produce or
deliver any document to, the Collector under subsection (1) shall
be legally bound to do so within the meaning of sections 174 and
175 of the Penal Code [Act 574].
Procedure on hearing and the duties of Collector thereon
12. (1) The Collector shall record in writing the evidence of all
witnesses in attendance, and allow cross-examination of any such
witnesses by any person present who claims to be interested in the
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estate or who has been appointed a guardian of any such person
under section 10. All such evidence shall be given on oath or
affirmation.
(2) The Collector may, in his discretion, examine as a witness
any person who appears to him to be capable of giving relevant
evidence and shall allow him to be cross-examined by any person
present who claims to be interested in the estate or who has been
appointed a guardian of any such person under section 10.
(3) The Collector may require the attendance of any penghulu
whom he believes to be able to give any material information
regarding the deceased or his estate and may examine him as a
witness.
(4) The Collector shall call evidence when necessary to ascertain
the religious or customary law applicable to the devolution of the
estate of the deceased.
(5) The Collector shall ascertain the amounts of the estate
duty, if any, the funeral expenses and debts of the deceased,
wherever arising.
(6) The Collector shall consider the claims of any alleged
purchasers who attend the hearing and shall ascertain and record
who, at the date of the hearing, is in actual occupation of any land
claimed by an alleged purchaser, the date, as nearly as the
evidence admits, when he went into occupation, and who, at the
date of lodging the petition, was in possession of the relevant
issue document of title.
(7) The Collector shall ascertain, in such manner as may be
most appropriate, the law applicable to the devolution of the
estate of the deceased, and shall decide who in accordance with
t h a t law are the beneficiaries and the proportions of their
respective shares and interests.
(8) The Collector may, if he considers it necessary or desirable,
adjourn the hearing from time to time and may appoint a different
place for any such adjourned hearing.
(9) At any time before the making of a distribution order the
Collector may reopen the hearing for the purpose of taking further
evidence on any relevant matter and shall reopen the hearing for
such purpose if so directed by the Director of Lands and Mines.
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(10) Where the Collector who is conducting or has conducted
any hearing of a petition under this section dies, or is unable
through illness, transfer or any other cause to exercise his functions
under this Act, any other Collector may continue with the hearing
or re-hear the whole or part of the evidence already taken or carry
out any other function under this Act in relation to the petition.
Order for distribution of small estate
13. (1) At the conclusion of the hearing the Collector shall by his
order make provision for the payment out of the estate of the estate
duty, if any, and of the funeral expenses and debts of the deceased,
wherever arising, and for the repayment to any person of any fees
paid by that person under this Act and may, if necessary, direct
the whole or such part of the estate as he may specify to be sold
and the expenses, debts, fees and duty to be paid from the proceeds
of the sale and subject thereto and to the following provisions of
this section shall distribute the residue of the estate according to
their respective shares and interests among the beneficiaries but
subject to section 15:
Provided that where there is in force any written law relating
to baitulmal the Collector shall before distributing any part of the
estate of a deceased Muslim satisfy himself that any share of the
estate which is due to the baitulmal has been duly paid or proper
provision made for the payment thereof.
(2) The Collector shall by his order direct the share of any
infant beneficiary in any immovable property to be registered in
the name of a suitable person as trustee and shall enter a caveat
to protect his interest during minority.
(3) If the Collector finds that the deceased was a trustee for any
person of any land held in the name of the deceased though not
registered as such, he shall unless in any case he thinks it proper
to refer to the Court order the trust property to be transmitted to
a new trustee or to the beneficiary as he shall think fit but without
prejudice to any registered rights or interests in the land of any
creditor of the deceased or any person deriving title through the
deceased.
(4) If the nature of the case so requires the Collector shall,
instead of or in addition to making a distribution order, grant
letters of administration to such person as he shall think fit, subject
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to such security as he may require and may in his discretion
dispense with security. The letters of administration shall be subject
to such limitations as the Collector may think fit to specify in the
grant.
(5) If the Collector finds that any person has proved his claim
to be a purchaser within the meaning of section 2 of any land
registered in the name of the deceased he shall, by his order,
transmit the land to the purchaser, subject to such conditions as
to the payment of any outstanding balance of the purchase money
or otherwise as he may think fit to impose.
(6) If in the opinion of the Collector any person claiming to be
a purchaser of any land registered in the name of the deceased is
not such a purchaser but is entitled to any sum as compensation
or relief out of the estate of the deceased he shall record a finding
to that effect and shall provide in the order for the payment of that
sum to that person as a debt of the deceased.
(7) If it appears that the estate is or is likely to be insolvent the
Collector shall grant letters of administration to some fit person
on behalf of the general body of creditors or else order the estate
to be administered in bankruptcy by the Director General of
Insolvency.
Determination of collateral disputes
14. (1) If in the course of the hearing it is certified by the Collector
to be necessary or desirable in the interests of justice that any
collateral dispute should be decided before a distribution order is
made, the Collector may defer the making of any distribution order
in respect of the estate or of that part of the estate which in his
o p i n i o n is or may be affected directly or indirectly by the
determination of that dispute and shall thereupon cause the dispute
to be determined in accordance with this section.
(2) For the purposes of this section a "collateral dispute" means
a dispute as to whether--
(a) any property movable or immovable or any right or interest
in any such property forms part of the estate of the deceased;
(b) any person is entitled beneficially to any property
movable or immovable or any right or interest in any
such property which the deceased at the time of his
Small Estates (Distribution)
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death held or was entitled to hold as a trustee and not
beneficially;
(c) any debt or liquidated sum in money is payable to any
person claiming the same out of the assets of the deceased
or any debt or liquidated sum in money is due or payable
by any person to the estate of the deceased; and
(d) any share or any right or interest in any share of a beneficiary
in the estate of the deceased has been assigned to or
vested in any other person, whether a beneficiary or not.
(3) In the case of any collateral dispute the Collector shall, after
ensuring that all necessary parties are before him or have had
sufficient opportunity to attend, proceed to hear and determine the
dispute and may make such order thereon as may be just.
(4)(7) (Deleted by Act A702).
(8) Subject to any regulations made under section 30, sections
9, 10, 11 and 12, with such modifications as may be necessary,
shall apply to the hearing and determination of collateral disputes
by Collectors under this section.
(9) Any order made by a Collector under this section shall have
the same force and effect and shall be enforceable in the same
manner as if it had been made by a court but there shall be no
appeal from such an order except under section 29.
(10) The Collector shall, when necessary, give effect by his
distribution order to any order made by him under this section.
Powers of the Collector in distributing the estate
15. (1) Where the Collector is satisfied that all the beneficiaries
of the estate being of full age and capacity have agreed between
themselves as to the manner in which the estate should be distributed,
the Collector may, after recording in the distribution order the
terms of the agreement, and the assent of the parties thereto,
distribute the estate in the manner provided for by the agreement
unless it shall appear to the Collector to be unjust or inequitable
so to do.
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(2) Where any such agreement has been entered into by all the
beneficiaries who are of full age and capacity the Collector may,
if in his opinion it is in the interests of any other beneficiary who
is a minor or a person not of full capacity to do so, assent to the
agreement on behalf of that minor or person and may thereupon
after recording the terms of the agreement and the assent of the
parties thereto and of his own assent on the part of the minor or
person distribute the estate in the manner provided for by the
agreement.
(3) Where two or more beneficiaries are entitled to share in any
land comprised in the estate the Collector may, at his discretion,
having regard to the interests of those concerned and the interests
of good cultivation--
(a) allocate separate lots to individual beneficiaries;
(b) allocate separate lots to two or more beneficiaries as co-
proprietors or tenants in common in undivided shares; or
(c) subject to any other written law restricting the subdivision
of land, order any lot to be subdivided by survey into
parcels proportionate to the shares of the beneficiaries
concerned, fixing a time within which they are to deposit
the appropriate survey fees in the Land Office and providing
that in default of such deposit the land be registered in
the names of those beneficiaries as co-proprietors or tenants
in common in undivided shares.
(4) The Collector, at his discretion, in order to prevent the
excessive subdivision of land or the holding of small lots of land
in common by numerous persons or in complicated fractional
interests--
(a) where the share of a beneficiary is small, may order the
land or any part thereof allocated to any other beneficiary
or a specified interest therein to be charged to the beneficiary
for amount of his share, together with interest at such
rate as may be just, not exceeding five per centum per
annum, in lieu of allocating to him a proprietary interest;
(b) where the value of any interest or share in land or lot
allocated to a beneficiary is less than the value of the
share in the estate to which the beneficiary is entitled,
Small Estates (Distribution)
21
may direct that the difference in value be made up to him
in money by the other beneficiaries in such proportion
as is equitable and may order, if necessary, that any such
payment and interest thereon at such rate as may be just,
not exceeding five per centum per annum, be secured by
a charge upon any share or shares of those other
beneficiaries;
(bb) may order that the undivided distributive share of
any beneficiary in any land or lot be allocated to
another beneficiary and that such other beneficiary
pay to the first-mentioned beneficiary such sum
of money as may be determined by the Collector
to be the value of such undivided distributive share:
Provided that no order shall be made under this
paragraph unless the Collector has first informed
the beneficiaries concerned of the terms of his
proposed order under this paragraph and the second-
mentioned beneficiary has deposited with the
C o l l e c t o r the sum of money proposed to be
determined by the Collector as the value of the
distributive share of the first-mentioned beneficiary;
(c) may order the land or any part of it to be sold in such
manner as may be prescribed; or
(d) may order the land or any part of it to be sold by tender
among the beneficiaries in such manner as may be
prescribed, but subject to a reserve price determined by
the Collector which shall not be less than the market
value of the land, or part of the land, at the date of the
tender.
(5) In the exercise of any discretion under this section the
Collector shall take into consideration the matters set forth in the
First Schedule.
(6) No distribution order made in accordance with subsections
(3), (4) and (5) shall have effect where any beneficiary affected
thereby is a native, unless every such beneficiary being of full age
a n d capacity shall have assented thereto, and where any
beneficiary is a minor or a person not of full capacity, the assent
shall have been given on his behalf by a guardian appointed under
section 10.
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ACT 98
Procedure after hearing
16. (1) The distribution order shall be drawn up forthwith by the
Collector and shall lie in his office for the period within which
notice of appeal may be given and, if notice of appeal under
section 29 has been given, shall continue to lie in the office until
the appeal has been withdrawn or decided, and shall if necessary
be amended or redrawn to conform with the decision on appeal.
The Collector shall then arrange for the order so far as it relates
to land to be registered as may be necessary and shall act under
subsection (3) where applicable.
(2) The Collector making a distribution order may sign and
enter any caveat required to be registered with the order, whether
in his own or any other registry or office.
(3) Where a sum of money in the possession of the Collector
is payable to any person under or by virtue of a distribution order,
the Collector shall deposit such sum of money with the Corporation
if--
(a) the whereabouts of such person are not known;
(b) such person refuses to accept payment of such sum of
money;
(c) such person lacks legal capacity; or
(d) for any other reason it is not practicable to pay such sum
of money to such person.
( 4 ) W h e r e a sum of money has been deposited with the
Corporationunder subsection (3), the Corporation* shall hold
such sum as trustee for the person entitled to it, and may apply
the same for the benefit of that person, or may pay the said sum
to that person if he makes a claim thereto in writing and the
Corporationis satisfied as to his identity, entitlement, and legal
capacity to receive it.
Subsequent applications
17. (1) Where it becomes necessary to appoint a new trustee or
a new administrator or to make any other or further order or to
withdraw a caveat the party interested may make an application
to the Collector, in the prescribed form or in any other form
which the Collector may permit, and thereupon the Collector shall
*NOTE--The original provision which used the word "Public Trustee" is now construed as
"Corporation"see subsection 43(3), Public Trust Corporation Act 1995 [Act 532].
Small Estates (Distribution)
23
investigate the matter and cause notice to be given to any other
party affected and if the matter is contentious he shall set it down
for hearing in the same manner as a petition for distribution under
this Act and after the investigation or hearing he shall make such
order or do any other act as may be necessary to give effect to his
decision and if necessary shall arrange for the order so far as it
relates to land to be registered as may be necessary.
(2) Where a minor beneficiary has attained majority the Collector
may either withdraw the caveat to enable the trustee to transfer the
interest to the beneficiary or make an order transmitting the interest
from the trustee to the beneficiary as proprietor and in the latter
case an order withdrawing the caveat may be incorporated in the
same instrument as the transmission.
(3) The Collector may for any cause he thinks fit at any time
either of his own motion or on the application of any beneficiary
or creditor revoke any grant of administration made by him and
may likewise order any administrator to file accounts or to supply
such other particulars concerning the administration of the estate
as he may require.
Duty of Settlement Officer and penghulu
18. (1) Where a proprietor of any land has died and no proceedings,
to the knowledge of a Settlement Officer of the district, or the
penghulu of the locality, in which the proprietor's land is situated,
have within six months of the date of death been taken to obtain
a grant of probate or letters of administration or for distribution
under this Act of the estate of the deceased, the said Settlement
Officer or the said penghulu shall report the matter to the Collector
and the Collector may thereupon direct the Settlement Officer or
the penghulu, or some other Settlement Officer of the district or
some other penghulu, to lodge a petition for distribution of the
estate unless he has reason to believe that the land was not part
of a small estate, in which case he shall report the matter to the
Corporation*.
(2) No fees under this Act shall be payable by the Settlement
Officer or the penghulu upon the lodging of any petition under this
section or on any consequent proceedings but at the conclusion
of the hearing the Collector shall assess the fees that would have
been payable under this Act if the petition had been lodged by
*NOTE--The original provision which used the word "Official Administrator" is now construed
as "Corporation"see subsection 43(3), Public Trust Corporation Act 1995 [Act 532].
Laws of Malaysia
24
ACT 98
some person other than the Settlement Officer or the penghulu and
shall in his distribution order direct that they shall be paid out of
the estate.
Reference on point of law or custom
19. (1) If any difficult point of law or custom arises in any
proceedings under this Act, the Collector may--
(a) if the question relates to Islamic law or Malay custom or
to native law or custom of Sabah or Sarawak, refer the
matter for decision to the Ruler of the State in which his
district is situated or to such other person or body of
persons as the Ruler may direct; or
(b) if the question relates to any other matter, may state a
case for the opinion and directions of the High Court.
(2) Every reference and every statement of case under subsection
(1) shall be in writing and shall contain a statement of the facts
on which an opinion or decision is required, and the Collector
shall give effect to any opinion, decision or directions thereby
obtained.
(3) Where any question is referred to the High Court under this
section the reference may be heard and disposed of by a Judge in
Chambers.
(4) The High Court shall not give any opinion upon any question
referred to it under section unless all those persons interested in
the proceedings who in the opinion of the High Court are likely
to be affected by the opinion have had an opportunity to appear
and be heard by the Court either in person or by advocate and the
costs of any such hearing shall be borne by such persons or by the
estate and in such proportion as the Court may direct.
PART III
SPECIAL PROVISIONS RELATING TO NEGERI
SEMBILAN
Application of Part
20. (1) This Part shall apply only in the districts of Jelebu, Kuala
Pilah, Rembau and Tampin in the State of Negeri Sembilan.
Small Estates (Distribution)
25
(2) Part II shall apply without modification in all cases where
the deceased was not a member of a tribe.
(3) Where the deceased was a member of a tribe, Part II shall
take effect subject to the provisions of this Part in respect of any
property comprised in the estate of the deceased and situated
within the districts to which this Part applies.
Interpretation
21. (1) In this Part "Enactment" means the Customary Tenure
Enactment of Negeri Sembilan [F.M.S. Cap. 215] and "tribe" means
one of the tribes specified in Schedule B to the Enactment.
(2) This Part shall be read with the Enactment and words defined
therein shall have the same meanings in this Act.
(3) In the event of any conflict between this Act and the Enactment
the provisions of the Enactment shall prevail.
(4) For the purpose of this Part the estate shall not include such
part of the estate as is "customary estate" within the meaning of
the Enactment.
All tribal estates to be "small"
22.  The estate of any deceased person who was at the time of
his death a member of a tribe shall be deemed to be a small estate,
whatever its total value, and every such person shall be deemed
for the purposes of this Act to have died intestate in respect of that
estate.
Jurisdiction
23. (1) The Collector of the district in which is located the tribe
or section of a tribe of which the deceased was a member shall
have exclusive jurisdiction over the estate under this Act:
Provided that if the value of the estate exceeds five thousand
ringgit the hearing of any petition for distribution shall be before
one or more officers nominated for that purpose by the Menteri
Besar of the State of Negeri Sembilan and the officer shall have
all the powers of a Collector having jurisdiction over the estate
under this Act.
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ACT 98
(2) Where the deceased has left customary estate in addition
to other property the Collector or other officer nominated under
this section shall, wherever practicable, fix the hearing of the
application under section 10 of the Enactment for the same time
and place as the hearing under section 12 of this Act.
Principles of distribution
2 4 .  I n making any distribution order, the Collector, which
expression, in this section, shall be deemed to include the officer
nominated under section 23, shall apply the following principles:
(a) if any land appears to be ancestral customary land,
though not registered as such, it shall be transmitted to
the customary heiress, subject if necessary to life occupancy;
(b) where any property is found as a fact to be harta
pembawa or harta dapatan it may be transmitted to the
customary heiress of the deceased subject to the right of
any other person to a share in or charge over that property
according to the principle of untung, where applicable,
and on registration of the order the Collector may, if
necessary, add the words "Customary Land" to any title
affected but he shall not be bound to do so;
(c) where any property is found as a fact to be harta carian
bujang or harta carian laki bini it may be transmitted
according to the custom of the luak and on registration
of the order the Collector may, if necessary, add the
words "Customary Land" to any title affected but he
shall not be bound to do so;
(d) the Collector shall give effect to customary adoptions
where they are satisfactorily proved;
(e) in all cases regard shall be had to any partial distribution
of property made or agreed upon in the lifetime of the
deceased and to the existence of any property which is
affected by any such distribution or agreement though
not part of the estate;
(f) wherever practicable the Collector shall avoid transmitting
undivided shares in any one lot to members of different
tribes; and
(g) where funeral expenses are by the custom chargeabe on
specific property and the party on whom that property
Small Estates (Distribution)
27
ought to devolve has not paid them, the Collector may
require the party to pay the funeral expenses as a condition
of inheriting that property or may, by the order, charge
that property with the amount of the funeral expenses.
Appeals
25. (1) Any appeal under section 29 which relates to customary
land or to the estate of a deceased member of a tribe shall be heard
by an Appeal Committee appointed by the Ruler, instead of by the
High Court, and subject to confirmation by the Ruler the report
of the Committee shall be final. The Ruler may make rules of
procedure and prescribe fees for such appeals.
(2) Unless and until an Appeal Committee is appointed under
subsection (1) any such appeal shall be heard in the same manner
as an appeal under section 15 of the Enactment.
PART IV
SPECIAL PROVISIONS RELATING TO SABAH
Application of Part
This Part shall apply only in the State of Sabah.
26.
Certain native estates to be "small"
26A. (1) The estate of any deceased person who at the time of his
death was a native of Sabah shall if it consists of immovable
property all of which is held under Native Title, whatever its
value, and movable property (if any) not exceeding twenty thousand
ringgit in value shall be deemed for the purposes of this Act to
be a small estate.
(2) In the case of an estate which is deemed to be a small estate
under subsection (1) Part II shall take effect subject to this Part.
In the case of other small estates Part II shall apply without
modification.
Small estates of natives of Sabah
26B.  When a petition for distribution relates to an estate which
is deemed to be small estate under subsection 26A(1), the Collector
shall refer the petition to the appropriate Native Court constituted
under the Native Court Ordinance of Sabah [Cap. 86] unless in his
Laws of Malaysia
28
ACT 98
opinion for any reason it should be dealt with under the Probate
and Administration Act 1959, in which event the Collector shall
send the record of the case and his finding to the High Court.
Procedure of Native Courts in Sabah
26C.  When a petition has been referred to the Native Court, the
Court shall, as far as possible, follow the procedure prescribed in
this Act, and shall exercise exclusively, in lieu of the Collector,
the authority therein granted to the Collector, and shall make a
distribution order having regard to subsection 1(2) and (3) of the
Wills Ordinance of Sabah [Cap. 158] and the law or custom
having the force of law applicable to the deceased, and the
decision of the Native Court shall be forwarded to the Collector,
who shall arrange for the order of that Court so far as it relates
to any interest in land to be registered as may be necessary.
Sale of native land in Sabah
26D.  Land registered in the name of a deceased native of Sabah
may be sold by order of the Native Court to pay debts of the
deceased or to satisfy the claim of a beneficiary who is not a
native, but the bidding in the case of land held under Part IV of
the Land Ordinance of Sabah shall be restricted to natives.
PART V
MISCELLANEOUS
Estate partly administered
27. (1) Where, before the coming into force of this Act, letters
of administration have been granted by the High Court and the
estate has not been fully administered, any further application
relating to the same estate may be made to the High Court, whether
the estate is, or has become, a small estate within the meaning of
this Act or not.
(2) Where before the coming into force of this Act a grant of
probate or letters of administrations has been made by any authority
other than the High Court, and the estate has not been fully
administered any further application relating to the same estate
may be made to a Judge or Registrar of the High Court in the State
in which the grant was made and thereupon the Registrar shall call
for the file of the former proceedings which may be continued as
though they had been commenced in his registry:
Small Estates (Distribution)
29
Provided that if for any reason, in the opinion of the Judge or
the Registrar, the proceedings cannot conveniently be so continued,
the Judge or Registrar may direct that a new petition be filed in
the High Court or that a petition for distribution be lodged with
a Collector pursuant to section 8.
(3) Where before the coming into force of this Act an application
for distribution or for a grant of letters of administration of a small
estate under any written law repealed by this Act has been made
to a Collector or, in the case of Sarawak, a Probate Officer, and
the estate has not been fully administered the Collector shall have
jurisdiction to continue the proceedings and shall continue them
in accordance with this Act, as early as the circumstances admit.
Exclusion of provisions of certain other laws
28.  None of the provisions of any law relating to duties on
estates of deceased persons or of any rules of court, so far as all
such provisions regulate the practice and procedure in granting
letters of administration or the imposition and collection of duties
payable on the estates of deceased persons, shall apply to any
proceedings under this Act except so far and with such modifications
as may be prescribed.
Appeal
29. (1) Subject to the other provisions of this Act and to subsection
(5) any person aggrieved by any order, decision or act made or
done by a Collector under this Act may appeal to the High Court:
Provided that no appeal shall lie from any such order, decision
or act so far as the same is based on and in accordance with
a decision of the Ruler or of any other person or body in respect
of a reference under paragraph 19(1)(a) or in accordance with
the opinion of the High Court in respect of a reference under
paragraph 19(1)(b):
Provided further that in the State of Terengganu when the appeal
is in respect of any decision of the Collector in relation to an
interest claimed under the Settlement Enactment [Tr. 65 of 1356]
the appeal shall lie to the Land Court constituted under that Enactment.
(2) The time limited for appeal and the procedure in every
such appeal shall unless otherwise provided by rules made under
Laws of Malaysia
30
ACT 98
section 30 conform to the limited for, and the procedure in, a civil
appeal from a Sessions Court with such variations as may be
necessary and the same fees shall be payable.
(3) If any doubt or difficulty shall arise on any point of procedure
in any such appeal any party may apply in writing to the Registrar
at the registry in which the appeal is pending or intended to be
filed and the Registrar shall give such directions as may be necessary.
(4) The decision of the High Court upon any such appeal shall
be final, and shall not be subject to any further appeal.
(5) Decisions of the Native Court in Sabah shall be subject to
appeal and revision as provided in the constitution of that Court.
Regulations
30.  The Minister may make regulations to carry into effect the
objects of this Act and to prescribe anything required to be prescribed
under this Act.
Advocates
31. (1) No advocate shall be entitled to appear on behalf of any
party in any proceedings before the Collector under this Act except
with the permission of the Collector, who may grant or withhold
such permission in each case as he thinks fit.
(2) No solicitor's costs shall be allowed out of any small estate
except that in a case where the estate exceeds three thousand
ringgit in value the Collector may, for special reasons stated in the
order, allow such costs to an amount not exceeding the amount of
such costs as might be awarded in a Sessions Court in a comparable
proceeding.
Repeal
32. (1) The Enactments mentioned in the first and second columns
of the Second Schedule are repealed to the extent specified in the
third columm thereof.
(2) (Omitted).
Small Estates (Distribution)
31
Saving and transitional
33. (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) Subject to this Act, the Corporation*, Malaysia shall be
deemed to have taken the place of the Administrator General,
Sabah, and of the Probate Officers in Sarawak.
Special provisions for Malacca and Penang
34.  The provisions of the Third Schedule shall have effect in
relation to a small estate (or a part of a small estate) which consists
of immovable property situated in the State of Malacca or the State
of Penang.
FIRST SCHEDULE
[Subsection 15(5)]
MATTERS TO BE TAKEN INTO CONSIDERATION BY
COLLECTOR IN DISTRIBUTING ESTATE
In determining whether to make a distribution order in accordance with any
agreement between the beneficiaries or in settling the terms of any distribution
order providing for the distribution of land the Collector shall have regard to
the following considerations:
(a) dividing land into several lots in several names may seriously diminish
the value of the estate as a whole;
(b) the real value of small shares, especially when represented by complicated
fractions, is less than their proportionate values;
(c) it is not conducive to good cultivation or to peace in a family for
persons who may have conflicting interests to be undivided co-proprietors
of land;
(d) it is greatly to the advantage of an infant that his co-proprietors should
be those most nearly related to him; and
*NOTE--The original provision which used the word "Official Administrator" is now construed
as "Corporation"see subsection 43(3) of the Public Trust Corporation Act 1995 [Act 532].
Laws of Malaysia
32
ACT 98
(e) valuations are necessarily estimates and are only approximately correct;
it is therefore unnecessary that the estimated value of a lot should be
the precise amount of a beneficiary's mathematical share; it is sufficient
if the estimated value of a lot substantially corresponds to the beneficiary's
calculated share.
SECOND SCHEDULE
[Section 32]
REPEAL
(1)
(2)
(3)
Short title
Extent of Repeal
F.M.S. Cap. 8
... The Probate and Administration
Chapter XIX.
Enactment
Johore No. 8
... The Small Estates Enactment 1936
The whole.
of 1936
Kedah No. 56
... Enactment No. 56 (Land)
Section 86.
Kedah No. 1
... Enactment No. 1 (Administration
Sections 19,
of Estates)
20, 21 and the
words "or
Magistrate" in
section 22.
Kelantan No. 2
... The Administration Enactment
Section 23.
of 1930
1930
Perlis No. 11
... The Land Enactment 1356
Section 90.
of 1356
Perlis No. 1
... The Administration of Estates
Sections 17
of 1338
Enactment 1338
and 18 and the
words "or
Magistrate" in
sections 19,
20, 22, 70
respectively
and the words
"or the
Magistrate"
wherever
occurring in
section 30.
Sabah Cap. 1
... Administration of Native and
The whole.
Small Estates Ordinance
Terengganu
... The Probate and Administration
Paragraphs
19(ii)(c) and
Enactment
Enactment
(d).
No. 22 of 1356
Terengganu
... The Land Enactment
Section 46.
Enactment
No. 3 of 1357
Small Estates (Distribution)
33
THIRD SCHEDULE
[Section 34]
SPECIAL PROVISIONS RELATING TO MALACCA AND PENANG
1.  In this Schedule "Commissioner", "holding" and "Interim Register" have
the same meaning as in the National Land Code (Penang and Malacca Titles)
Act 1963 [Act 518].
2.  Without prejudice to section 27, the Collector may make a distribution
order in respect of a small estate of a person who died at any time before the
date when this Act came into force in relation to the States of Penang and
Malacca, but not if the estate has been or is being administered under the law
in force before that date for the administration of estates.
3. (1) Where the Collector is satisfied in respect of a holding which is or forms
part of a small estate that--
(a) the person registered in the Interim Register as the proprietor of the
holding is dead; and
(b) some other person would be entitled (or if that other person is dead,
would have been entitled while he was alive) to be registered as
proprietor of the holding but for a failure or failures by any person,
including that other person, to obtain probate or letters of administration
on the death of the person registered as proprietor or any subsequent
occupier,
he may make in pursuance of paragraph 2 such distribution orders as are
necessary in his opinion to vest the holding in that other person.
(2) Where two or more orders are made under subparagraph (1) in respect
of a single holding, they shall be regarded as a single order for the purpose of
assessing any duty or fee payable under any written law on the making of a
distribution order under this Act.
(3) The making of an order under subparagraph (1) in respect of a death
which took place on or after 1 January 1935, and before 4 December 1957, shall
not cause any person to incur liability for the payment of any Estate Duty fee
under Rule 17 of the Small Estates (Distribution) Rules 1955 [L.N. 495 of
1955].
4. (1) Before making any order under paragraph 3, the Collector shall hold an
enquiry for the purpose of satisfying himself as to the matters mentioned in
subsubparagraphs (a) and (b) of that paragraph and may, in an appropriate case,
combine the enquiry with a hearing under section 12.
(2) Section 12 shall apply with necessary modifications to an enquiry under
subparagraph (1).
Laws of Malaysia
34
ACT 98
LAWS OF MALAYSIA
Act 98
SMALL ESTATES (DISTRIBUTION) ACT 1955
LIST OF AMENDMENTS
Amending law
Short title
In force from
L.N. 332/1958
Federal Constitution (Modification
13-11-1958
of Laws) (Ordinances and
Proclamations) Order 1958
Ord. 26/1959
Small Estates (Distribution)
30-05-1959
(Amendment) Ordinance 1959
Ord. 35/1959
Probate and Administration
01-02-1960
Ordinance 1959
Act 7/1964, s. 5
Courts of Judicature Act 1964
16-09-1963
Penang L.N.
Small Estates (Penang and
23-12-1965
36/1965
Malacca) Order 1965
Malacca L.N.
Small Estates (Penang and
30-12-1965
65/1965
Malacca) Order 1965
P.U. (B) 324/1970
Notification under section 3 of
01-01-1971
Titles of Office Ordinance 1949
Act A127
Small Estates (Distribution)
23-06-1972
(Amendment and Extension)
Act 1972
P.U. (B) 217/1974
Order under subsection 3(2)
01-07-1974
Act 160
Malaysian Currency (Ringgit)
29-08-1975
Act 1975
Act A399
Small Estates (Distribution)
10-06-1977
(Amendment) Act 1977
P.U. (A) 357/1980
Subordinate Courts Act
01-06-1981
(Extension) Order 1980
Act A533
Small Estates (Distribution)
18-10-1979
(Amendment) Act 1982
Small Estates (Distribution)
35
Amending law
Short title
In force from
Act A702
Small Estates (Distribution)
01-01-1989;
(Amendment) Act 1988
except
para. 3(1)(a),
(b), (c):
25-03-1985;
para. 3(1)(e):
01-02-1974
Laws of Malaysia
36
ACT 98
LAWS OF MALAYSIA
Act 98
SMALL ESTATES (DISTRIBUTION) ACT 1955
LIST OF SECTIONS AMENDED
Section
Amending authority
In force from
1
Act A702
01-01-1989
2
Act A702
01-02-1974;
25-03-1985
3
P.U. (B) 217/1974
01-07-1974
Act 160
29-08-1975
Act A399
10-06-1977
Act A533
18-10-1979
Act A702
01-01-1989
4
Act A702
01-01-1989
8
Act A702
01-01-1989
11A
Act A702
01-01-1989
12
Act A702
01-01-1989
14
Act A702
01-01-1989
15
Act A702
01-01-1989
16
Act A702
01-01-1989
18
Act A702
01-01-1989
23
Act 160
29-08-1975
26A
Act 160
29-08-1975
29
Act A702
01-01-1989
31
Act 160
29-08-1975
DICETAK OLEH
PERCETAKAN NASIONAL MALAYSIA BERHAD,
KUALA LUMPUR
BAGI PIHAK DAN DENGAN PERINTAH KERAJAAN MALAYSIA