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Executing a will
13/02/2007 The Star ARTICLES OF LAW by BHAG SINGH
The inheritance of property becomes an issue once the owner has passed on.
Whether there is a will or not, approval must be obtained before the estate
can be distributed.
EVERY individual endeavours to acquire property. Such property takes
different forms. It could be cash, money in the bank, shares in a business
enterprise or real estate in the form of land or residential or industrial
buildings.
When a person’s life comes to an end, all this is left behind. What then
happens to such property and to whom it goes to is referred to as the
administration of estate of the deceased.
Where a person has directed, through a will, to whom the property or estate
is to go to, this will be carried out to the extent that the law of the
country allows. Otherwise, the property will pass on to persons or bodies as
stipulated by law.
When those who are entitled to the property can amicably agree on the manner
the property is to be passed down, the process of devolution will run
smoothly. However, when there is dissension among those who claim
inheritance, a costly and prolonged litigation may ensue.
Whether there is a cordial relationship or bitter dispute between those who
are entitled to the inheritance, the courts and in some cases, other
tribunals, have to be involved to supervise the inheritance process.
When the property is comprised wholly or partly of land, and does not exceed
the value of RM600,000, one need not always go to the High Court. In such a
situation, an application can be made under the Small Estates (Distribution)
Act 1955.
The Act contains provisions for the administration of customary as well as
native land. Under this Act, the collector of the district where the greater
part in value of the property is situated, has exclusive jurisdiction to
deal with the distribution and administration of the whole estate, unless
this is specifically restricted.
The High Court is not entirely irrelevant to the process. The court
continues to have the power to be involved and is available for references
to be made to it on points of law so that its opinion and direction may be
sought. The High Court is also available to hear any appeals made by any
person who is aggrieved by any order or decision made by a collector.
Where the property of the deceased does not come within the scope of being a
small estate, then those who seek to administer the estate must resort to
the High Court for its endorsement, whether or not the inheritance is
disputed.
When a person dies leaving no will, he is said to die interstate. In such
cases, an application to administer the property is made by way of petition
for Letters of Administration. Upon everything being in order, the court
issues a Grant of Administration.
When a person leaves a will to cover all his property, the administration of
the estate requires a Petition for Probate. Upon the court being satisfied
with the will, a Grant of Probate is issued to the applicant with an
executor appointed whether named in the will or appointed by the court.
Thus, whether there is a will or not, an application has to be made to the
High Court to administer the estate of the deceased person before
administration and distribution of the estate can proceed.
This procedure is in place to ensure that those who are legitimately
entitled to inheritances are amply protected. Any disputes to claimed rights
is determined at this stage before distribution of the inheritance can
proceed.
This discussion would be incomplete without some reference to wills. A will
is a direction by a person as to how the property is to be dealt with upon
his death as well as how certain other aspects are to be addressed.
Two aspects relating to a will need to be mentioned at this stage:
The will does not do away with the need to apply to the appropriate
tribunal.
Its existence is no guarantee that everything will be carried out
accordingly. It is possible for a will to be challenged and this could lead
to complex litigation.
There could be occasions when the validity of a will is not challenged.
However, modifications or attempts to qualify its full effect could emerge.
This could occur when there are specific circumstances provided for by the
law.
Finally, there is a need to be aware that the law of inheritance works
differently for Muslims. While the process of applying for distribution
under the small estate provisions or the High Court is the same for all, the
estate distribution is not the same.
In the case of non-Muslims, the entitlement to inheritance is based on the
will which is governed by the Inheritance (Family Provisions) Act 1971 &
Distribution Act 1958. In the case of Muslims, the inheritance has to be on
the basis of Syariah law principles.
There is also a difference in approach when it comes to wills. A non-Muslim
can, with rare exceptions, will away his entire estate. A Muslim can only
will away not more than one-third of his estate to those who are not
entitled under Syariah law. The remainder has to be passed on as provided
for under Syariah law.
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