Category Archives: Administration of Estate

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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