Author Archives: Christopher Vun

About Christopher Vun

The writer is an advocates and solicitors of High Court of Malaya practising in Kuala Lumpur, Malaysia

Declaration of Death/Presumption of Death

Why there is a need to apply for declaration of death/presumption of death?

One of the purpose of such declaration of death/presumption of death is to facilitate the administration of  estate of a person who went missing and but the body cannot be found. This problem may be encountered by the family of those who have went missing during the tsunami in 2004 or during aircraft disaster.

It must be highlighted that a death certificate is required in any application for grant of representation because it is important for the next of kin to show the proof of death.

However in situation where a person have went missing but the body cannot be found the National Registration Department (Jabatan Pendaftaran Negara) will not issue any death certificate because Section 18 of the Births and Death Registration Act 1957 requires the dead body to be found in order for a death to be registered. Please see the explanation provided by the National Registration Department here.

In order to administer the estate of such person the next of kin will have to apply for a declaration of death from the High Court and to use this declaration as the proof of death.

The basis of such declaration is found in Section 108 Evidence Act 1950 which reads as follows:

“ when the question whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive , the burden of proving that he is alive is shifted to the person who affirms”

Section 108 Evidence Act 1950 also commonly known as the presumption of death in a simplistic view it means a person can be presume to be dead if he has not been heard of for 7 years by those who would have naturally heard of him if he had been alive.

Hence the person who would naturally hears from the missing person will have to make the application for declaration of death.

Application is by way filing the relevant cause papers in the High Court:

  1. Ex Parte Originating Summons;
  2. Affidavit in Support outlining the facts upon which the application is based.

Upon the court being satisfied that Section 108 Evidence Act 1950 has been complied with the Court will grant order in terms as per the Ex Parte Originating Summons.

With the declaration of death the next of kin of the missing person which is now presumed to be dead can apply for the appropriate grant of representation from the Court.

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What is a Will? and the benefits of having a Will

Will and the benefits of having a Will

Will

  1. What is a Will? Basically a Will is a written document signed by the person making the Will (“Testator”) leaving the estate of the Testator to the beneficiaries named in the Will.
  1. The Testator will usually name a person as the executor in his Will who is vested with the responsibility to administer the estate of the Testator in accordance with the terms of the Will;
  1. The Testator will also usually specify the portions or percentage of his estate to be given to the beneficiaries.
  1. At times the Testator may also make arrangement for funeral arrangement in the Will.
  1. The legislation governing a Will in Malaysia is the Wills Act 1959 and there are few basic provision worth to take note off as it is capable of affecting the validity of a Will and they are as follows:
  • Section 5 Wills Act 1959 where it was provided that the a Will must be in writing and signed by the Testator in the presence of two or more witnesses;
  • Section 4 Wills Act 1959 where it was provided that will of any infant (below the age of majority of 18) is invalid; and
  • Section 9 Wills Act 1959 where it was provided that gift by the Testator to the attesting witness or to the spouse of such witness in a Will is void without affecting the ability of the witness to attest to the due execution of the Will.
  1. Having observed the above provisions of the Wills Act 1959 it appears that anyone can draft a Will as long as the basic provision of the Wills Act 1959 is complied with. However, the writer is of the view that it will always be better to have a Will prepared or drafted by a lawyer because a lawyer is a professional who is qualified to give legal advise on the provisions of the Wills Act 1959.

The benefits of having a Will

There are various benefits available only to a person died leaving a valid Will (“Testate Succession”) as opposed to someone who have died without leaving a valid Will (“Intestate Succession”) and few of the important benefits are illustrated in the following table:

 

No. Testate Succession Intestate Succession
1 The Testator’s estate vests in the executor upon the Testator’s death thereby enabling the executor to handle the Testator’s affairs subject to the production of the grant of Probate if and when required.

 

The Testator’s estate do not vest in the administrator until the Letter of Administrator have been extracted.
2. The Testator has the absolute freedom to choose his beneficiaries and their entitlement. The Testator do not have such rights freedom to choose his beneficiaries and their shares. Succession to the estate is determined by the provision of the laws on intestate succession which is the Distribution Act 1958.

 

3. There is no requirement for the executor to provide sureties as security for the administration of the estate because the executor was chosen by the Testator himself.

 

Sureties is required as securities for the administration of the estate.
4. Minimize or reduce the possibility of conflict among the beneficiaries because everything has been spelled out clearly from naming the executor to beneficiaries entitlement.

 

Leave room for possible conflict among the beneficiaries.
  1. Having read the above it can be safely concluded that it is always better to have a Will and it highly recommended to have a Will prepared by a lawyer as opposed to drafting one by yourself.
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Administration of estate in Malaysia (Letter of Administration and Grant of Probate)

Administration of estate in Malaysia (Letter of Administration and Grant of Probate)

wills-and-probate-signing

Upon the death of a person (“the Deceased”), the next of kin other than having to deal with the lost of the love one will also have to deal with the assets and liabilities of the Deceased.

It is common ground that upon the passing of the Deceased the next of kin or even the beneficiaries will not be able to deal with the assets and liabilities of the Deceased because the authorities, the banks or third party usually will requires the person claiming to represents the estate of the Deceased to provide some proof that he or she is so authorized by law to deal with the assets of the Deceased.

Now the next question is how to get the next of kin or the beneficiaries of the Deceased to be authorized? The answer is that the next of kin or the beneficiaries will have to apply for the relevant grant of representation.

A grant of representation to put it simply means it will formally or officially vest the person or persons being granted with the relevant grant of representation with the authorities to deal with the assets and liabilities of the Deceased.

Depending on the type of the grant of representation, the person granted with the representation can be known as an “Administrator” in the case of a grant of Letter of Administration or an “Executor” in the case of a grant of Probate.

There are various types of grant of representation in Malaysia and we will be only dealing with the most common type of grant here which is the grant of Letter of Administration and the Grant of Probate.

The grant of Letter of Administration

A grant of Letter of Administration is a grant issued by the High Court of Malaya allowing the person granted with the Letter of Administration to administer the estate or assets of the Deceased in situation where the Deceased have died without leaving a valid will.

The application for the grant of Letter of Administration will have to be made to the High Court

The followings are the procedure for applying for the grant of Letter of Administration:

Step 1 filing of the cause papers

  1. the appointed lawyer will prepare the followings documents to be filed in the High Court:
  • Ex Parte Originating Summons praying for the person named therein to be granted with the Letter of Administration;
  • Affidavit In Support of the Ex Parte Originating Summons;
  • Notice of Appointment of Solicitors;
  • List of assets of the Deceased;
  • List of liabilities of the Deceased;
  • Renounciation; and
  • Administration Oath.

Step 2 hearing of the Ex Parte Originating Summons

  1. Once the above is filed the High Court will processed the documents and will seal the Ex Parte Originating Summons with the seal of the High Court. The High Court at the same time will fix a hearing date for the Ex Parte Originating Summons.
  1. The Ex Parte Originating summons will then be heard in the High Court before a Registrar and the intended administrator or administrators will have to be present in Court for the hearing. The Registrar upon being satisfied that the papers filed are in order will grant order in terms as per the Ex Parte Originating Summons i.e. will grant the Letter of Administration to the person or persons named.

Step 3 dispensation of sureties

  1. Section 35(1) Probate and Administration Act 1959 requires the applicant for the letters of administration to provide two sureties who have assets within the jurisdiction equivalent to the amount of the Deceased’s estate as security for the due administration of the estate.
  1. Due to the difficulties in finding the required sureties, the applicant for the Letter of Administration will usually be advised to file an application for dispensation of sureties to dispense with the requirement of Section 35(1) Probate and Administration Act 1959 and it usually will be granted by the Court.

Step 4 collecting assets and payment of debts

  1. Having done the above the Letter of Administration can now be extracted and once it is extracted from the High Court the administrator now can collect all the assets of the Deceased into his possession to settle all the debts or liabilities of the Deceased meaning the administrator can now go to the bank and withdraw the Deceased’s monies from the bank or etc.

Step 5 distribution

  1. Having collected the assets of the Deceased and settle all his debts, the Administrator can now distribute the assets of the Deceased in accordance with Section 6 of the Distribution Act 1958 (Act 300) which provides for the followings:

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Annulment of Marriage In Malaysia

Mumbai-breakup

Annulment of marriage in Malaysia is governed by  the Law Reform (Marriage and Divorce) Act 1976 (Act 164).

Before proceeding further it is important to note the primary distinction  between void marriage and voidable marriage.

A void marriage means the valid marriage does not exists at all at the time of solemnization of the marriage whereas a voidable marriage exists at the time of solemnization until it is annulled by the Court.

It is pertinent to note that the jurisdiction to grant a decree of nullity regardless whether it is pursuant to void or voidable marriages lies with the High Court. It is also important to note that Malaysian High Court can only grant the decree of nullity when both the parties to the marriage reside in Malaysia at the time of the commence of the proceedings and this is provided for in Section 67(c) of the Law Reform (Marriage and Divorce) Act 1976.

Void Marriage

Moving on will be the when a marriage is considered to be void and this is provided for in Section 69 paragraph (a)-(d) of the Law Reform (Marriage and Divorce) Act 1976 and they are as follows:-

(a) at the time of the marriage either party was already lawfully married and the former or wife of such party was living at the time of the marriage and such former marriage was then in force

[here it means marriage is only between one man and one woman to the exclusion of others and if a person who was already lawfully married marries again, the latter marriage is considered as void marriage].

(b) a male person marries under 18 years of age or a female person who is above 16 years but under 18 years marries without a a special licence granted by the Chief Minister under section 10 of the Law Reform (Marriage and Divorce) Act 1976;

(c) the parties are within the prohibited degrees of relationship unless the Chief Minister grants a special license under subsection (6) of section 11; or

(d) the parties are not respectively male and female.

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Debt collections/debt recoveries for goods or services provided

One of the common cause of litigation is debt collections/debt recoveries for goods and services provided.

This usually arises when one party has provided goods and services to the other party and the later has failed to pay the earlier for the said goods and services provided.

The common question asked by the aggrieved party is what are the documents that they need to furnish it to the lawyers to prove its claim or is the document that they have is good enough.

Facts in issues to need to be proved for debt collections/debt recoveries for goods or services provided

Legally speaking, debt collections/debt recoveries for goods or services provided is still an action based on breach of contract and accordingly the aggrieved party will have to prove the followings to the Court in order to succeed in its claim:-

  1. the existence of a contract;
  2. the terms of the contract;
  3. that the aggrieved party has perform its or his part of the contract;
  4. the other party has failed to perform its or his party of the contact; and
  5. the aggrieved party has suffered loss/damage as a result of the failure of the other party to perform his part of the contract.

pastdue

The documents required for debt collections/debt recoveries for goods and services provided

To prove the above, usually the lawyer will ask for the following documents bearing in mind the list is not exhaustive:

  1. Purchase Order;
  2. Delivery Order;
  3. Invoices issued; and’
  4. Monthly Statement of Account.

If all the above documents are clear and in good order, usually the lawyer will advise to proceed with a summary judgment under Order 14 Rules of Court 2012 as oppose for a full trial in an action for debt collections/debt recoveries for goods and services provided.

 

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Assessment of damages for breach of contract

The applicable law in awarding damages for loss or damage caused by breach of contract is provided for in Section 74 Contracts Act 1950 and it reads as follows :-

 Section 74(1) Contracts Act 1950:

When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

 Section 74(2) Contracts Act 1950:

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach

 The judicial interpretation of Section 74(1) Contracts Act 1950 can be found in the Federal Court decision of Toeh Kee Keong v Tambun Mining Company Ltd [1967] 1 LNS 197 where Azmi CJ have held as follows:

“Section 74(1) of the Contracts Ordinance, 1950, is a statutory enunciation of the rule in Hadlex v. Baxendale [1854], 9 Exch 341. This section reads:

When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, Then they made the contract, to be likely result from the breach of it.

 The rule lays down the main principles as follows:-

Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably considered either arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.

 In more compendious terms the rule has been restated by Asquith LJ in Victoria Laundry (Windsor) Ltd v. Newman Industries [1949] 2 KB 528, 539 in a passage which I shall quote in full:

 It is well settled that the governing purpose of damages is to put the party whose rights have been violated in the same position as far as money can do so, as if his rights had been observed: (Sally Wertheim v. Chicoutimi Pulp Co (1911] AC 301). This purpose, if relentlessly pursued, would provide him with a complete indemnity for all the loss de facto resulting from a particular breach, however improbable, however unpredictable. This, in contract at least, is recognized as too harsh a rule. Hence.

 In cases of breach of contract the aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably foreseeable as liable to result from the breach.

 What was at that time reasonably so foreseeable depends on the knowledge then possessed by the parties or, at all events, by the party who later commits the breach.

 For this purpose knowledge “possessed” is of two kinds; one imputed, the other actual. Everyone, as a reasonable person, is taken to know the “ordinary course of things” and consequently what loss is liable to result from the breach of contract in that ordinary course. This is the subject matter of the “first rule” in Hadley v. Baxendale, supra. But to this knowledge , which a contract-breaker is assumed to possess whether he actually possesses it or not, there may have to be added in a particular case knowledge which he actually possesses, of special circumstances outside the “ordinary course of things” of such a kind that a breach in those special circumstances would be liable to cause more loss. Such a case attracts the operation of the “second rule” so as to make additional loss also recoverable.

 In order to make the contract-breaker liable under either rule it is not necessary that he should actually have asked himself what loss is liable to result from a breach. As has often been pointed out, parties at the time of contracting contemplate not the breach of the contract, but its performance. It suffices that, if he had considered the question, he would as a reasonable man concluded that the loss in question was liable to result (see observations of Lord Du Parcq in the recent case of Monarch Steamship Co. Ltd v. Karlshamns Oljfaribker (A/B) [1949] AC 196).

 Nor, finally to make a particular loss recoverable, need it be proved that upon a given state of knowledge that defendant could, as a reasonable man, foresee that a breach must necessarily result in that loss. It is enough if he could foresee it was likely so to result. It is indeed enough to borrow from the language of Lord Du Parcq in the same ease, at p.158 if the loss(or some factor without which it would not have occurred is a ‘serious possibility” or a real danger. For short, we have used the word “liable to result. Possibly the colloquialism “on the cards” indicates the shade of meaning with some approach to accuracy”.

 Based on the above it is clear that Section 74(1) Contracts Act 1950 is a statutory codification of the rule in Hadley v. Baxendale [1854], 9 Exch 341 and it provides for two limbs in assessing damages for breach of contract and they are best summarized as follows:-

 First Limb

Defendants are liable for loss or damage which naturally arose in the usual course of things from the breach i.e. foreseeable loss to be assessed objectively; and

 Second Limb

Damages which the parties knew, when they made the contract, to be likely to result from the breach of it. Section 74(2) Contracts Act 1950 in turn provides that loss or damage that is too remote cannot be compensated.

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Landlord and Tenant Disputes In Malaysia

LANDLORD AND TENANT DISPUTES IN MALAYSIA

a)            One of the common cause for  landlord and tenant disputes in Malaysia is when the tenant refused to pay the rental. When this happened most landlord would want to know what are the reliefs available to them in law.

b)            The first thing that the landlord will need to decide is whether he still want to continue to let the property in question to the tenant or he want to terminate the tenancy and take back the property.

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Wedding Expenses In Divorce Proceeding

 

  1. There are times when a party would want to claim for wedding expenses in divorce proceeding against the opposing party in addition to asking for the Court for an order to dissolve the marriage.
  2. One of the probable cause for the party concerned to ask for this relief is when he or she feels that the other party had caused the marriage to break down and hence the other party should reimburse him or her for the wedding expenses in divorce proceeding
  3. The next question to be answered is whether the claim for wedding expenses in divorce proceeding is sustainable in law and this brings us to the Law Reform (Marriage and Divorce) Act 1976 (Act 164) which is the primary legislation regulating marriages and divorces for non-muslims in Malaysia.
  4. It is important to note that the Law Reform (Marriage and Divorce) Act 1976 (Act 164) provided clear provisions on the issue of maintenance of spouse, property divisions and custody of children but there is no provisions whatsoever stated in the said Act that allows for the parties in divorce proceeding to claim for wedding expenses incurred.
  5. References was also made to the following point of reference but it is also unfortunate to note (the writer stand to be corrected) that it does not made any references to the issue on whether the claim for wedding expenses in divorce proceeding has ever been allowed in Malaysian Court. 

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Judgment in Default of Appearance in Malaysia (setting aside)

 

Judgment in Default of Appearance in Malaysia

(i)            A Judgment in Default of Appearance in Malaysia or commonly referred to as Penghakiman Ingkar Kehadiran in Bahasa Malaysia is a judgment entered against the defendant after it was proved to the satisfaction of the Court that the Writ of Summons was served on the defendant but the defendant have failed to appear or file a notice of his appearance in Court within the permitted time.

(ii)          Assuming that someone had served you with a Judgment in Default of Appearance, the next step for you to do now is to set aside the judgment in default of appearance but the question would be how is it possible for you to do so and what is the laws governing in setting aside judgment in default of appearance in Malaysia.

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Divorce by Mutual Consent or Joint Petition in Malaysia

good-bye-break-up-quote

Dissolution of a marriage by way of divorce by joint petition or by mutual consent is allowed  under Section 52 Law Reform(Marriage and Divorce) Act 1976 (Act 164) and the jurisdiction to grant the divorce lies with the High Court.  It is worth to pause that the Law Reform (Marriage and Divorce) Act 1976 (Act 164) is governing statutes regulating among other things marriages and divorces for non-muslims in Malaysia.

As long as the parties agreed to the divorce, one of them is domiciled in Malaysia (or is a citizen of Malaysia) and have been married for at least two (2) years at the time of the presentation of the Petition for divorce they are eligible to apply for a divorce by way of a joint petition under Section 52 Law Reform(Marriage and Divorce) Act 1976 (Act 164).

It is equally important to note that dissolution of the marriage by way of joint petition is out of the free will of the parties and hence it necessarily means that the parties will have to agree to the few key areas following the divorce (where applicable) such as custody of the children, maintenance of the wife and distribution of matrimonial properties.

In my view, as long as the arrangement between the parties in these key areas are legal, the Court is ready to grant the order as per the joint petition  without going into the merits and/or the entitlement of the parties. For example, if the parties have agreed that the wife will get the custody of the son, the Court will not enquire whether the welfare of the son is best served with the wife having the custody of the son. The same will go to the maintenance of the son, if the husband agreed to pay the monthly maintenance of RM2,000.00 to the wife as maintenance of the son, the Court will not enquire whether the husband can afford to pay such sum and/or whether the son really need this amount. If the parties are unable to agree on the relevant key areas then they will not be able to obtain divorce by mutual consent. One of them will have to present a petition for divorce and the matter now has become a Contested Divorce.

The legal process for divorcing by joint petition will commence with:

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