Citation Probate Malaysia: A citation is a notice issued when the executor(s) in a will delay or declines to apply for the grant of probate. A Citation for Probate is an option to beneficiaries forcing the intermeddling person to formalize their role by obtaining a Grant of Representation and completing the action. A caveat must be entered before issuing a citation.
Definition of a will
A declaration intended to have the legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death. A will includes a testament, a codicil* and appointment by will or by writing in the nature of a will in exercise of power and also a disposition by will or testament of guardianship, custody, and tuition of any child – Sec 2(1) of the Wills Act 1959.
*testamentary document to modify, alter or amend part of the original will.
Citation Probate Malaysia: Importance and benefits of having a will
- First, you can leave assets to your intended beneficiaries
- Second, you can choose your executor
- Third, you can choose a guardian for your children and provide for them
- Fourth, you can create a testamentary trust in your will
- Fifth, you can revoke your will anytime if it no longer represents your interests
Basic formalities of a will
- The maker of the will must be of sound mind with animus testandi (intention to make a will) (Sec 3 of the Wills Act 1959)
- Must be 18 years old and above (Sec 4 of the Wills Act 1959)
- No will shall be valid unless in writing and executed in the manner prescribed under Sec 5 of the Wills Act 1959
Citation Probate Malaysia: Contents of a will
- Particulars of the testator (Name, NRIC, and Address)
- Appointment of Executor(s)
- Contents (intention, declaration, and wishes)
- Beneficiary(s)
- Date
- Signatures (testator and two witnesses)
Appointment of executor(s)
- An executor is a person appointed to –
➢ administer the assets of the testator
➢ carry out the wishes/bequests of the testator - An executor must be willing and capable of acting
- An executor may appointed from the pool of beneficiaries
- Appointment of alternative executor(s) can be stated in the will
- A maximum of 4 persons can be appointed as executors. For example, Sec 4(1) of the Probate and Administration Act 1959 provides that representation cannot be granted to more than 4 persons
- If there is a beneficiary who is an infant or if a life interest arises under the will, the administration shall granted to be a trust
corporation OR not less than 2 individuals as executors – Sec 4(3) of the Probate and Administration Act 1959
What can be disposed of by a will?
Property or an interest in the property belonging to the testator or to be received by the testator – Sec 3 of the Wills Act 1959:
- Personal / Movable property
- Real / Immovable property
- Shareholding in a company
- Partnership interest
- The interest given under the will of another individual (provided that the gift has not lapsed)
Citation Probate Malaysia: What cannot be disposed of by a will?
If there are nominations in the Employee Provident Fund (EPF) and insurance policies, payouts from EPF and insurance policies will not form part of the estate or pay the testator’s debts.
- EPF – How Yew Hock (Executor of the Estate of Yee Sow Thoo, deceased) v Lembaga Kumpulan Wang Simpanan Pekerja [1996] 2 MLJ 474 – Statutory nominations will prevail over will.
- Insurance – Section 130 of the Financial Services Act 2013 & Schedule 10 of the Financial Services Act 2013
Condition gift(s)
- The testator can impose condition precedents in the will.
- The beneficiary of the conditional gift will not acquire an interest in the gift until he or she satisfies the relevant condition precedent.
- Cannot be impossible conditions
➢ For example: to purchase property and build a house during the war. - Cannot be against public policy
➢ Eg: to deprive a parent of the control of the child, to restrain a marriage, a condition forbidding enlistment (military). - Cannot be uncertain/vague
➢ Eg: “a small portion of is what is left” or “one of the sons” of Mr. A. - Cannot be illegal
➢ Eg: to commit a crime or any act prohibited by law. - Cannot be in conflict with the interest of the beneficiary(s)
➢ Eg: RM1 million to be paid absolutely to Mr. X upon attaining the age of 28 years old but reduced if Mr. X embraced the religious life. - Cannot be in conflict with the gifts or provisions of the will
➢ Eg: “All my property” to Mr. X and gift of the residue to Mr. A.
Citation Probate Malaysia: Testamentary trust(s)
Citation Probate Malaysia: A testamentary trust created under a will and takes effect only upon the death of the testator. It usually created to provide for the manner of distribution of all or part of an estate. There may be more than one testamentary trust per will depend on the testator’s wishes. In general, there are two types of testamentary trusts. For example, fixed testamentary trust; and discretionary testamentary trust.
Benefits of having testamentary trust(s) –
- preserve assets
- the trustee will retain discretion in handling the assets
- prevent dissipation of assets prematurely
- ideal if you have beneficiaries who are unable to handle a lump sum benefit responsibly
Article: FAQs on Condition Precedents and Testamentary Trusts
Residuary clause
- Catch-all provision
- Everything that is left in the estate after –
➢ all debts and administration expenses have been paid
➢ all specific and non-specific gifts have been disposed of - If you do not have a residuary clause in your will, your assets/properties not stated in the will may fall within the ambit of the Distribution Act 1958 (Partial intestacy – Sec 8 of the Distribution Act 1958)
Citation Probate Malaysia: Beneficiary(s)
- Individuals with the capacity to benefit
- Examples of individuals with no capacity to benefit –
- individuals who predeceased the testator
- the attesting witnesses
- the husband/wife of the attesting witnesses cannot benefit (the gift is utterly null and void – Sec 9 of the Wills Act 1959)
Mode of execution
Sec 5 of the Wills Act 1959 –
- Signature of the testator to be at the foot or end of the will
- The signature of the testator must be in the presence of 2 witnesses
- Both witnesses must sign after the signature of the testator
- Both witnesses must be present at the same time
Addressing common misconceptions
- A will only come to effect upon the death of the testator
- A will do not need stamped to be valid
- You can amend your will by making a fresh will or by way of a codicil
- Not a compulsory requirement for the maker of a will to initial at every page of the will. But, it is a good practice to follow.
- Everyone can make a will (except for infants – Sec 4 of the Wills Act 1959)
Citation Probate Malaysia: Testacy
- An individual who passed away with a valid will
- The will takes effect upon the death of the testator
- The executor(s) appointed in the will to make an application for Grant of Probate –
- The application must made to the High Court
- Originating Summons + Affidavit in Support
- Notice of Appointment of Solicitors
- Affidavit of Witnesses
Intestacy
- All persons interested in the estate (usual beneficiaries) can make an application for a Grant of Letters of Administration upon the death of a person without a will.
- The application must made to the High Court
- Originating Summons + Affidavit in Support
- Notice of Appointment of Solicitors
- Letter of Consent / Renunciation
- Administration Oath
- Application to dispense administration bond (> RM50K)
- Distribution Order/Order for Sale for immovable properties
- Who are the beneficiaries?
➢ Section 6 of the Distribution Act 1958 sets out the persons entitled to the estate and the manner of distribution. - Persons entitled under Section 6 of the Distribution Act 1958:
➢ Spouse, Children, Parents, Siblings, Grandparents, Uncles and Aunts, Great grandparents, Great grand uncles and great-grand aunts, Bona vacantia
Remuneration
- Executor’s Commission
➢ Section 43(1) of the Probate and Administration Act 1959. The Court may allow the executors or administrators a commission not exceeding 5% on the value of assets collected (discretionary).
Citation Probate Malaysia: Possible Complications
- Renunciation
➢ The executor may expressly renounce his/her rights to the representation – Sec 8 Probate and Administration Act 1959. Constructive renunciation – Sec 9 Probate and Administration Act 1959. Furthermore, the person renouncing shall precluded from applying for representation thereafter. - Caveat
➢ A caveat can entered by any person to ensure that no grant of representation made. A caveat can entered at the High Court Registry. A caveat is valid for 6 months. The procedure for a caveat – Or 71 of the Rules of Court 2012. - Citation Probate Malaysia
➢ The Citation to accept or refuse or to take a grant. Citation is a notice issued when the executor(s) in will delays or declines to apply for the grant of probate. A caveat must be entered before issuing a citation. Procedure on issuing of citation – Or 71 r 42 of the Rules of Court 2012. The High Court shall have the power to summon any person named as executor in any will to prove or renounce probate of the will and do any such other things concerning any will – Sec 40 of the Probate and Administration Act 1959.
Possible Challenges
- Lack of testamentary capacity (not of sound mind, memory, and understanding)
- Suspicious circumstances
- Undue influence
- Forgery/Fraud
- Removal of executor(s)
1. Lack of testamentary capacity – not of sound mind, memory, and understanding
➢ Person(s) alleging the validity of the will bear the burden of proving testamentary capacity.
➢ How to prove testamentary capacity?
– The content of the will read and the testator understood the content, the effect, and the extent of the disposal of the
property (Udham Singh v Indar Kaur [1971] 2 MLJ 263; Eu Boon Yeap & Ors v Ewe Kean Hoe [2008] 2 MLJ 868). ➢ Medical report to show that the Testator suffered unsoundness of mind or lacked the mental capacity to make a will (Eu Boon Yeap & Ors v Ewe Kean Hoe [2008] 2 MLJ 868, Lee Ing Chin & Ors v Gan Yook Chin & Anor [2003] 2 CLJ 19).
➢ Mere bodily ill-health or imperfect memory is insufficient to prove testamentary incapacity (Lee Ing Chin & Ors v Gan Yook Chin &
Anor [2003] 2 CLJ 19).
2. Citation Probate Malaysia: Suspicious circumstances
The burden on the person(s) proving the will to dispel suspicious circumstances by showing that the will read to the testator and the testator knew and approved the will.
➢ Examples of suspicious circumstances:-
– Substantial gift to a person who prepared or closely involved in the preparation of the will.
➢ One method of dispelling suspicious circumstances is to show that the Testator obtained independent legal advice.
3. Citation Probate Malaysia: Undue influence
- Person(s) alleging undue influence bears the burden of proving.
- The testator coerced into executing the will in the form that it taken. Or, the will was not the voluntary act of the testator (Carmel Mary Soosai v Josephine Lourdasamy Ratnavathy R. Soosai & Ors [1987] CLJ (Rep) 498).
4. Forgery/Fraud
- Person(s) alleging forgery bears the burden of proving.
- The testator’s signature on the will does not bear the true and genuine signature of the deceased and is a forgery.
- The allegation of forgery most commonly raised in a situation where there are 2 wills in existence
- Evidence of handwriting expert to prove signature does not belong to the testator.
5. Removal of executor(s)
Citation Probate Malaysia: Removal of the person(s) from his office of an executor. Moreover, the court empowered to remove an executor or trustee where there is failure to act because of unfitness or incapacity to act. Primary consideration is for the interest of the beneficiaries and estate to be protected. No direct provision for removal in the Probate and Administration Act 1959. The closest would be Sec 40 of the Probate and Administration Act 1959, according to Jeffrey Tan J in Khaw Cheng Bok & Ors v Khaw Cheng Poon & Ors [1998] 3 MLJ 457. Sec 34 Probate and Administration Act 1959 – Any probate or letters of administration may be revoked or amended for any
sufficient cause.
➢ Examples of sufficient cause:-
- First, failure to render accounts or periodic accounts
- Second, failure to administer the estate
- Third, failure to call in the assets
- intermeddled with the assets
- active hostility towards the beneficiaries
However, cases have shown that Court is slow in removing the person(s) named in the will as executor (Liong Seow Keng & Ors v Ho Soon Cheng [2015] 3 CLJ 808). (Source: Judge & Priestley)
