Grant of probate to executor
(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
(1) Representation shall not be granted to more than four persons in regard to the same property. (2) If any beneficiary is an infant, or if a life interest arises under the will or intestacy, administration shall be granted either to a trust corporation (with or without an individual) or to not less than two individuals: Provided that— (a) the Court may in its discretion and for such special reasons as it may think fit grant administration to one individual; and (b) the Court in granting administration may act on such prima facie evidence, furnished by the applicant or any other person, as to whether or not there is a minority or life interest, as may be prescribed. (3) If there is only one personal representative (not being a trust corporation) then, during the minority of a beneficiary or the subsistence of a life interest, and until the estate is fully administered, the Court may on the application of any person interested or of the guardian, committee or receiver of any such person, or of its own motion, appoint in accordance with rules of court one or more personal representatives in addition to the original personal representative. (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
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
(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— (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
(1) Any person who is or may become entitled to representation may expressly renounce his right to the representation. (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
(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
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
(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 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
(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
(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. (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.
(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
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— (a) no executor is appointed by a will; (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
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
When no will of the deceased is forthcoming, but there is reason to believe that there is a will in existence, letters of administration may be granted, limited until the will or an authenticated copy thereof is produced.
Letters of administration pendente lite
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
(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
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
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.
Letters of administration to collect and preserve property
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
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
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
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.
Administration with copy annexed of authenticated copy of will proved abroad
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
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
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 (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
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
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
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].
Caveat
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
Any probate or letters of administration may be revoked or amended for any sufficient cause.
Administration bond
(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.
Bond by creditor who is administrator
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
The 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
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.
Provisions on this page are reproduced verbatim from official open data. See the attribution line.
Text as at 1 January 2006 (LOM reprint); amendments made after that date may not be incorporated. Read the official text ↗
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).