(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 modifications 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.
*NOTE—In its application to the Federal Territory of Labuan—see the Federal Territory of Labuan (Modification of the Small Estate (Distribution) Act 1955) Order 2011 [P.U. (A) 20/2011] which comes into operation on 1 February 2011.
Act 98
Small Estates (Distribution) Act 1955
An Act relating to the distribution of small estates of deceased persons and matters incidental thereto.
Data synced
Text as at 15 July 2024 (LOM reprint); amendments made after that date may not be incorporated.
Part I — Preliminary
In this Act, unless the context otherwise requires—
“Corporation” means the Amanah Raya Berhad, a company incorporated under the Companies Act 1965 [Act 125] pursuant to section 3 of the Public Trust Corporation Act 1995 [Act 532];
“distribution order” means an order for the distribution of a small estate made under this Act;
“Estate Distribution Officer” means an officer appointed under section 2C;
“High Court” means the High Court in Malaya or the High Court in Sabah and Sarawak, as the case may require;
“Land Administrator” 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
NOTE—The Companies Act 1965 [Act 125] has been repealed by the Companies Act 2016 [Act 777] which comes into operation on 31 January 2017―see subsection 620(1) of Act 777.
(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;
“Majlis”, in relation to a State, means the Majlis Agama Islam, by whatever name called, established under any written law for the purpose of administering Islamic law;
“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]; “patient” means a person who is a sole beneficiary, suffering from serious illness or injury, or who is bedridden, and unable to attend any proceedings under this Act;
“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;
“President” means the President of Estate Distribution appointed under subsection 2A(1);
“property” means immovable property or movable property or both;
NOTE—The Interpretation Ordinance of Sarawak [Cap. 1] has been repealed by the Interpretation Ordinance, 2005 [Cap. 61] which comes into operation on 1 July 2005―see section 61 of Cap. 61.
“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, or is in possession of any movable property sold by the deceased by a written agreement;
“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;
“valuation officer” means a valuation officer employed by the Government and includes an assistant valuation officer or a registered valuer under the Valuers, Appraisers, Estate Agents and Property Managers Act 1981 [Act 242].
Part IA — President of estate distribution, deputy president of estate distribution and estate distribution officer
(1) The Minister shall appoint from among the Estate Distribution Officers appointed under section 2C a President of Estate Distribution.
(2) The President shall have all such powers as may be necessary for or in connection with the exercise of his powers under this Act or which are reasonably incidental to such exercise.
(3) Without prejudice to the generality of subsection (2), the powers of the President shall include the power to determine the territorial jurisdiction of any Estate Distribution Officer to deal with the distribution and administration of any estate falls within the Act and to have direct control and supervision over all the Estate Distribution Officers appointed under this Act.
(1) The Minister may appoint such number of Deputy Presidents of Estate Distribution from among the officers appointed under section 2C to assist the President in the exercise of his powers under this Act.
(2) If for any reason the President is unable to exercise his powers, the Minister may appoint one of the Deputy Presidents to exercise the powers of the President.
The Minister may appoint from among the public officers such number of Estate Distribution Officers as may be necessary for the purpose of carrying into effect the provisions of this Act.
Part II — Administration of small estates
(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 of any property situated in any State and not exceeding five million 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.
(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.
(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 Estate Distribution Officer of the state where a petition has been lodged or in the case of more than one petition has been lodged, the Estate Distribution Officer of the state where the first petition has been lodged, shall have exclusive jurisdiction to deal with the distribution and administration of the whole estate wherever situated:
Provided that where the property is situated partly in one State and partly in another, the President may upon application duly made in that behalf, order that any petition under this Act shall be heard and determined by the Estate Distribution Officer of any other state, 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 Estate Distribution Officer 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 President 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 Estate Distribution Officer who in the opinion of, the President is affected thereby.
(5) The Estate Distribution Officer for each state in which is situated any part of the property comprised in an estate in respect of which a petition for distribution has been lodged or a valuation officer 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.
(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 the 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 Estate Distribution Officer named in the order to proceed with the distribution of the estate as if a petition therefore had been duly lodged.
(3) Where any order is made under paragraph (2)(c), the Estate Distribution Officer therein named shall, upon receipt of a copy of the order, forthwith proceed to distribute the estate in accordance with this Act.
Nothing in this Act shall affect the exclusive jurisdiction of the High Court to reseal any grant of representation made outside 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.
s 7Power of the Registrar to transfer petitions relating to an intestate small estate to the Estate Distribution OfficerOpen ↗
(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 Estate Distribution Officer having jurisdiction to order distribution of that estate under section 4 and the Estate Distribution Officer 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 President and the proceedings shall not be continued in the High Court unless and until the President has certified in writing under his hand that the estate is not, or is not deemed to be, a small estate under this Act.
(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 Corporation, or Majlis, or guardian, or next friend, may lodge with the Estate Distribution Officer at any state wherever the property comprised in the estate is situated a petition, in the prescribed form, for the distribution of the estate.
(2) The petitioner shall deliver to the Estate Distribution Officer all issue documents of title or other documents evidencing title to property relating to the estate in his possession or power or other supporting documents evidencing the statements claimed in the petition.
(3) The Estate Distribution Officer 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 Estate Distribution Officer.
(4) If no such petition has been so filed or lodged, the Estate Distribution Officer 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 Estate Distribution Officer or a valuation officer shall value the property comprised therein wherever situate, if any.
(6) The valuation of the property comprised in an estate by the Estate Distribution Officer or a valuation officer under this section shall be conclusive for the purpose of this Act.
(6A) Notwithstanding subsection (6), where the valuation of the property for petition for distribution is more than one, the Estate Distribution Officer shall examine each valuation and decide which valuation to be applied in determining whether any estate is or is not a small estate and his decision shall be final and the valuation shall be conclusive for the purposes of this Act.
(7) If the Estate Distribution Officer 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 Estate Distribution Officer under subsection 7(1).
(8) If the Estate Distribution Officer decides that the estate is a small estate, he shall deal with the petition in accordance with subsection 4(2) but if it appears to him that it would be more expedient for the petition to be heard by another Estate Distribution Officer, he may apply to the President, for an order to be made under subsection 4(2).
(9) If upon ascertaining from the principal registry of the High Court, the Estate Distribution Officer has notice that any other petition for distribution had been previously lodged in respect of the estate with any other Estate Distribution Officer or that any application has been made to the President under subsection 4(2) or that any petition for probate 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 strike out the petition before him and inform the petitioner accordingly.
(10) The Minister may, with the approval of the State Authority, by notification in the Gazette, appoint a date for the coming into operation of this section in relation to the Majlis.
Where a petition for distribution is lodged with a Estate Distribution Officer and that any movable property comprised in the estate had been administered or is being administered by the Corporation, the Estate Distribution Officer shall notify the Corporation or petitioner of such case and it shall be the duty of the Corporation or petitioner to deliver to the Estate Distribution Officer any document relating to the property for the purpose of determining whether the estate is or is not a small estate.
(1) Where a petition for distribution is lodged or any subsequent application is filed under this Act, the petitioner or applicant may apply to the Estate Distribution Officer for a summary distribution order if the petition or application falls under the following cases:
(a) in the case of the petition, it consists only of movable property and does not exceed six hundred thousand ringgit in total value; or
(b) in the case of any subsequent application—
(i) it consists only of movable property which has not been declared in the petition and does not exceed six hundred thousand ringgit in total value; or
(ii) it is filed for the purpose of removing a trustee when a minor has attained age of majority.
(2) The application for an order under subsection (1) may be made as may be prescribed.
(3) Where the Estate Distribution Officer makes an order under subsection (1), the petition or subsequent application shall not be heard.
(4) A copy of an order under subsection (1) shall be served on a petitioner or applicant who shall cause such copy of the order to be served on the beneficiaries.
(5) For the purposes of this section, section 10 and subsection 13(4) shall apply.
Pending any distribution order, letters of administration may be granted to a petitioner or any beneficiary as the Estate Distribution Officer 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 Estate Distribution Officer as the Estate Distribution Officer deems fit, and subject to that limitation the administrator so appointed shall have all the rights and powers of a general administrator.
(1) Subject to section 8, the Estate Distribution Officer 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 on the petitioner in the prescribed manner and upon receiving such notice, the petitioner shall serve a copy of the notice on all persons who are named and addressed in the petition as beneficiaries of or claimants to the estate or any interest in 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) (Deleted by Act A1643).
(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 Estate Distribution Officer to be interested in the distribution of the estate, is or appears to the Estate Distribution Officer to be a minor or a person of unsound mind or a patient, the Estate Distribution Officer may, by an order in writing, appoint some suitable and proper person to be the guardian of the minor or person of unsound mind or the next friend of the patient 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 or a patient.
(2) For the purposes of subsection (1)—
(a) in relation to the appointment of a guardian, the Estate Distribution Officer shall have regard to any personal law or custom affecting the minor or person of unsound mind; and
(b) in relation to the appointment of a next friend, the Estate Distribution Officer shall have regard to any personal law or custom, and any circumstances or medical reason rendering a patient unable to represent himself.
(3) The next friend appointed under this section shall assist the patient in any matter relating to proceedings for the distribution of the estate so far as not detrimental to the interest of the patient.
(1) Every petition for distribution shall be heard in such place as the Estate Distribution Officer 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.
(2A) Notwithstanding subsection (2), the Estate Distribution Officer shall have power to restrict public access to the hearing of any petition or any part of the petition if he is satisfied that it is expedient in the interests of public safety, public security or propriety, or for other sufficient reason to do so.
(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 property, the Estate Distribution Officer may, in his discretion, hold the hearing, or any part thereof at a convenient place on or near to that property.
s 11AEstate Distribution Officer’s power to summon and examine witnesses, administer oaths or affirmations, and compel production and delivery of documentsOpen ↗
(1) The Estate Distribution Officer 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 Estate Distribution Officer under subsection (1) shall be legally bound to do so within the meaning of sections 174 and 175 of the Penal Code [Act 574].
(1) The Estate Distribution Officer 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 estate or who has been appointed a guardian or next friend of any such person under section 10. All such evidence shall be given on oath or affirmation.
(2) The Estate Distribution Officer 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 or next friend of any such person under section 10.
(3) The Estate Distribution Officer may require the attendance of any person 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 Estate Distribution Officer shall call evidence when necessary to ascertain the religious or customary law applicable to the devolution of the estate of the deceased.
(5) The Estate Distribution Officer shall ascertain the amounts of the estate duty, if any, the funeral expenses and debts of the deceased, wherever arising.
(6) The Estate Distribution Officer 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 or possession of any property claimed by an alleged purchaser, the date, as nearly as the evidence admits, when he went into occupation or possession, and who, at the date of lodging the petition, was in possession of the relevant issue document of title or other supporting documents relating to the purchase of the property.
(7) The Estate Distribution Officer 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 that law are the beneficiaries and the proportions of their respective shares and interests.
(8) The Estate Distribution Officer 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 Estate Distribution Officer 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 President.
(10) Where the Estate Distribution Officer 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 Estate Distribution Officer may continue with the hearing or re-hear the whole or part of the evidence already taken or carry out any other functions under this Act in relation to the petition.
(11) Where any beneficiary whose name stated in the petition is unable to attend the hearing, the Estate Distribution Officer may direct the petitioner to submit a letter of consent in a prescribed form from the beneficiary within such time as determined by the Estate Distribution Officer.
(12) Where the letter of consent referred to in subsection (11) is not submitted, the Estate Distribution Officer may, as he thinks fit, proceed to conclude the hearing.
(1) At the conclusion of the hearing, the Estate Distribution Officer 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 Estate Distribution Officer 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) Where a petition involves a beneficiary who is a minor or a person of unsound mind, the Estate Distribution Officer shall make the following order:
(a) the share of any minor or person of unsound mind in any immovable property to be registered in the name of a suitable person as a trustee; and
(b) the Estate Distribution Officer or the Registrar of Titles to enter a caveat to protect the interest of the minor or person of unsound mind.
(3) If the Estate Distribution Officer 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 Estate Distribution Officer shall, instead of or in addition to making a distribution order, grant letters of administration to such number of persons as he shall think fit. The letters of administration shall be subject to such limitations as the Estate Distribution Officer may think fit to specify in the grant.
(5) If the Estate Distribution Officer finds that any person has proved his claim to be a purchaser within the meaning of section 2, he shall, by his order, transmit or transfer the property 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 Estate Distribution Officer any person claiming to be a purchaser of any property 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 Estate Distribution Officer 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.
Where any movable property comprised in a small estate has been administered by the Corporation, the Estate Distribution Officer shall accept any direction or declaration made by the Corporation in relation to the property.
(1) If in the course of the hearing it is certified by the Estate Distribution Officer to be necessary or desirable in the interests of justice that any collateral dispute should be decided before a distribution order is made, the Estate Distribution Officer may defer the making of any distribution order in respect of the estate or of that
part of the estate which in his opinion 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 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 or any right or interest in any such property which the deceased at the time of his 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 Estate Distribution Officer 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 Estate Distribution Officers under this section.
(9) Any order made by a Estate Distribution Officer 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 Estate Distribution Officer shall, when necessary, give effect by his distribution order to any order made by him under this section.
*NOTE—Previously known as “Official Assignee”—see section 17 of the Bankruptcy (Amendment) Act 2003 [Act A1197] which comes into operation on 1 October 2003—see P.U. (B) 295/2003.
(1) Where the Estate Distribution Officer 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 Estate Distribution Officer 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 Estate Distribution Officer to be unjust or inequitable so to do.
(2) Where any such agreement has been entered into by all the beneficiaries who are of full age and capacity, the Estate Distribution Officer 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 Estate Distribution Officer 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; or
(b) allocate separate lots to two or more beneficiaries as co-proprietors or tenants in common in undivided shares.
(4) The Estate Distribution Officer, 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;
(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, may direct that the difference in value be made up to him in money by the other beneficiaries in such proportion as is equitable;
(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 Estate Distribution Officer to be the value of such undivided distributive share:
Provided that no order shall be made under this paragraph unless the Estate Distribution Officer 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 Corporation the sum of money proposed to be determined by the Estate Distribution Officer 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 Estate Distribution Officer which shall not be less than the market value of the land, or part of the land, as the case may be, at the date of the tender.
(4A) Where any beneficiary fails to agree to the sale of the land or any part of it, the Estate Distribution Officer may order the land or any part of it to be sold in such manner as may be prescribed based on the consent of the beneficiaries holding two-third majority shares on the land or any part of it.
(4B) In the exercise of the power under subsection (4A), the Estate Distribution Officer shall take into account the interest of the beneficiaries to be secured and protected.
(5) In the exercise of any discretion under this section, the Estate Distribution Officer shall take into consideration the matters set forth in the First Schedule.
(5A) Where two or more beneficiaries are entitled to a share in any movable property comprised in the estate, the Estate Distribution Officer may, at his discretion, having regard to the interest of those concerned, order the property to be sold in such manner as may be prescribed.
(6) No distribution order made in accordance with subsections (3),
(4), (5) and (5A) shall have effect where any beneficiary affected thereby is a native, unless every such beneficiary being of full age and 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.
(1) The distribution order shall be drawn up forthwith by the Estate Distribution Officer 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 petitioner shall then arrange for the order so far as it relates to land to be registered as may be necessary and the Estate Distribution Officer shall act under subsection (3) where applicable.
(2) The Estate Distribution Officer in making a distribution order may make an order for entry of caveat and the Land Administrator or Registrar of Title, upon receiving the distribution order, shall give effect to such order accordingly.
(3) Where a sum of money in the possession of the Estate Distribution Officer is payable to any person under or by virtue of a distribution order, the Estate Distribution Officer shall deposit such sum of money with the *Corporation or Majlis 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) Where a sum of money has been deposited with the Corporation or Majlis under subsection (3), the Corporation or Majlis 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 Corporation or Majlis is satisfied as to his identity, entitlement and legal capacity to receive it.
(5) The Minister may, with the approval of the State Authority, by notification in the Gazette, appoint a date for the coming into operation of this section in relation to the Majlis.
*NOTE―The original provision which used the words “Official Administrator” is now construed as “Corporation”―see subsection 43(3) of the Public Trust Corporation Act 1995 [Act 532].
(1) Where the Estate Distribution Officer is satisfied that any order made under this Act contains clerical error, he may make such amendment on the order and the order shall be served on the petitioner.
(2) No amendment other than an amendment to correct a clerical error shall be made by the Estate Distribution Officer or any person affected by the order unless it is made in accordance with the regulations made by the Minister.
(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 Estate Distribution Officer in the prescribed form or in any other form which the Estate Distribution Officer may permit, and thereupon the Estate Distribution Officer shall 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, or a person of unsound mind has been certified by a Government Medical Officer that the person is no longer a person of unsound mind, the Estate Distribution Officer may either request the Land Administrator or Registrar of Titles to 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 Estate Distribution Officer 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.
(1) Where a proprietor or owner of any property has died and no proceedings, to the knowledge of the Corporation or Majlis, have within six months of the date of death been taken to obtain a grant of probate or letters of administration or for distribution order under this Act of the estate of a deceased, the Corporation or Majlis may report the matter to the Estate Distribution Officer and the Estate Distribution Officer may thereupon request the Corporation or Majlis to lodge a petition for distribution of the estate subject to the Corporation or Majlis to obtain consent from a beneficiary to the estate of a deceased person, a creditor or a purchaser who has interest in the estate of a deceased person, as the case may be.
(2) Any fees payable under this section as may be prescribed and may be paid out of the estate.
(3) The Minister may, with the approval of the State Authority, by notification in the Gazette, appoint a date for the coming into operation of this section in relation to the Majlis.
(1) If any difficult point of law or custom arises in any proceedings under this Act, the Estate Distribution Officer 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 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 Estate Distribution Officer 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 this 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
(1) This Part shall apply only in the districts of Jelebu, Kuala Pilah, Rembau and Tampin in the State of Negeri Sembilan.
(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.
(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.
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.
(1) The Land Administrator 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 Land Administrator having jurisdiction over the estate under this Act.
(2) Where the deceased has left customary estate in addition to other property, the Land Administrator 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.
In making any distribution order, the Land Administrator, 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 Land Administrator 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 Land Administrator may, if necessary, add the words “Customary Land” to any title affected but he shall not be bound to do so;
(d) the Land Administrator 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 Land Administrator shall avoid transmitting undivided shares in any one lot to members of different tribes; and
(g) where funeral expenses are by the custom chargeable on specific property and the party on whom that property ought to devolve has not paid them, the Land Administrator 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.
(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
This Part shall apply only in the State of Sabah.
(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.
When a petition for distribution relates to an estate which is deemed to be small estate under subsection 26A(1), the Land Administrator shall refer the petition to the appropriate Native Court constituted under the *Native Courts Ordinance of Sabah [Cap. 86], unless in his opinion for any reason it should be dealt with under the Probate and Administration Act 1959 [Act 97], in which event the Land Administrator shall send the record of the case and his finding to the High Court.
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 Land Administrator, the authority therein granted to the Land Administrator, 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 Land Administrator, 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.
*NOTE―The Native Courts Ordinance of Sabah [Cap. 86] has been repealed by the Native Courts Enactment 1992 [No. 3 of 1992] which comes into operation on 1 April 1993―see section 31 of No. 3 of 1992.
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
(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 administration 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:
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 Estate Distribution Officer 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
Estate Distribution Officer or, in the case of Sarawak, a Probate Officer, and the estate has not been fully administered, the Estate Distribution Officer shall have jurisdiction to continue the proceedings and shall continue them in accordance with this Act, as early as the circumstances admit.
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.
(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 Estate Distribution Officer under this Act may appeal to the High Court within thirty days from the date the order, decision or act is made or done:
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 Estate Distribution Officer 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) For the purposes of subsection (1), the procedure in relation to such appeal shall be subject to the rules of court applicable in the High Court.
(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.
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.
(1) No advocate shall be entitled to appear on behalf of any party in any proceedings before the Estate Distribution Officer under this Act except with the permission of the Estate Distribution Officer, 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 Estate Distribution Officer 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.
(1) The Enactments mentioned in the first and second columns of the Second Schedule are repealed to the extent specified in the third column thereof.
(2) (Omitted).
(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 shall be deemed to have taken the place of the Administrator General, Sabah, and of the Probate Officers in Sarawak.
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.
NOTE—see section 25 of the Small Estates (Distribution)(Amendment) Act 2022 [Act A1643] which comes into operation on 15 July 2024 [P.U. (B) 267/2024] which provides the following provision:
Savings
25. (1) Any petition, application, investigation, hearing and proceedings in relation to the distribution of a small estate pending before the date of coming into operation of this Act shall be dealt with in accordance with the principal Act as amended by this Act.
(2) Any order, letter of administration, decision, determination, direction, certification, appointment, reference, action and notice in relation to the distribution of a small estate made, done or issued by the Land Administrator under the principal Act before the date of coming into operation of this Act, shall be deemed to be made, done or issued by the Estate Distribution Officer and continue to be in force.
(3) Any appeal to any order, decision or act made or done under section 29 of the principal Act before the date of coming into operation of this Act shall, after the date of coming into operation of this Act, be continued as if section 29 of the principal Act has not been amended by this Act.
*NOTE―The original provision which used the words “Official Administrator” is now construed as “Corporation”―see subsection 43(3) of the Public Trust Corporation Act 1995 [Act 532].
[Subsection 15(5)]
MATTERS TO BE TAKEN INTO CONSIDERATION BY ESTATE DISTRIBUTION OFFICER IN DISTRIBUTION ESTATE
In the exercise of any discretion of the Estate Distribution Officer to determine 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 property, the Estate Distribution Officer shall have regard to the following considerations:
(a) in relation to immovable property—
(i) dividing the land into several lots in several names may seriously diminish the value of the estate as a whole;
(ii) the real value of small shares, especially when represented by complicated fractions, is less than their proportionate values;
(iii) 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;
(iv) it is greatly to the advantage of a minor or a person of unsound mind that his co-proprietors should be those most nearly related to him; and
(v) valuations are necessarily estimates and are only approximately correct; it is unnecessary that the estimated value of a lot should be precise amount of a beneficiary’s mathematical share; it is sufficient if the estimated value of a lot substantially corresponds to a beneficiary’s calculated share; and
(b) in relation to movable property—
(i) type of movable property whether can be divided or not; and
(ii) the rights to which any beneficiary or interested party is entitled to may consist in terms of the physical share of the actual movable property or its value.
[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 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
Trengganu … The Probate and Administration Paragraphs Enactment Enactment 19(ii)(c) and (d) No. 22 of 1356 Trengganu … The Land Enactment Section 46 Enactment No. 3 of 1357
[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 Estate Distribution Officer 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 Estate Distribution Officer 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 Estate Distribution Officer shall hold an enquiry for the purpose of satisfying himself as to the matters mentioned in subparagraphs (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
SMALL ESTATES (DISTRIBUTION) ACT 1955
Cite this legislation
- Official citation
- Act 98
- Source
- lom.agc.gov.my
- Data synced
- Licence
- Official text, free to reproduce (Copyright Act 1987 [Act 332] s 3) ↗
Small Estates (Distribution) Act 1955 [Act 98] (Laws of Malaysia, lom.agc.gov.my). Retrieved via LawPlayer, https://lawplayer.com/my/act/act-98
This text is synced from lom.agc.gov.my. In case of any discrepancy, the official version prevails.
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).