Law: An Asian Identity?

9th Asian Law Institute Conference

Thursday and Friday, 31 May and 1 June 2012, Singapore

COVER PAGE FOR PAPER S !"ISSIO#

Administration of Testate Estates: A Malaysian dentity

Asst$ Prof$ %r$ A&'a( )idayah )a(i'
Ahmad !rahim "ulliyyah of #a$s, nternational slami% &ni'ersity Malaysia a(malh)iium*edu*my

#ote: +lease note that AS# $ill distri!ute the papers to %onferen%e parti%ipants only for the sole purpose of dis%ussion* The papers might also !e put on a &S, thum! dri'e to !e distri!uted to %onferen%e parti%ipants* -either the %opies in the &S, dri'e nor the printed %opies of indi'idual papers $ill %onstitute pu!li%ation. papers $ill not thereafter !e pu!lished !y the %onferen%e organi/ers nor made a'aila!le to indi'iduals or li!raries* +resenters retain the %opyright to their papers and are free to %ommit them for pu!li%ation else$here* All papers should not !e %ited $ithout prior permission from the authors* Su!missions may !e made separately to the Asian Journal of Comparative Law* +lease refer to their $e!site at http:00la$*nus*edu*sg0asli0as1%l*html* The de%ision to pu!lish $ill !e made independently !y the 1ournals2 editorial !oards, not the %onferen%e organi/ers or AS# *

For AS# Se%retariat &se 3nly 4ate of +resentation

(delete where applicable):

Thursday, 31 May 2012

+anel Assigned:

E3

A%"I#IS*RA*IO# OF *ES*A*E ES*A*ES: A "ALA+SIA# I%E#*I*+ , A&'a( )idayah )a(i',,

Introduction The area of administration of estates in Malaysia is go'erned !y 'arious statutes of general appli%ation1 $hi%h %onfer different 1urisdi%tion to different %ategories of administrati'e !odies, depending on the types of estates left !y the de%eased* 5enerally, estates %an !e %lassified into testate and intestate estates* 2 Testate estate refers to the estate that is disposed of !y a person through his $ill* Su%h a person is (no$n as a testator* ntestate estate, on the other hand, refers to the estate of a person $ho dies $ithout lea'ing a 'alid $ill* Su%h a person is also (no$n as an intestate* Se%tion 2 of the +ro!ate and Administration A%t 1676 pro'ides that 8intestate2 in%ludes a person $ho lea'es a $ill, !ut dies intestate as to some !enefi%ial interest in his mo'a!le or immo'a!le property* 3 ,y 'irtue of se%tion 29:f; of the <ourts of Judi%ature A%t 16=9 :A%t 61;, the >igh <ourt has the 1urisdi%tion to grant pro!ates of $ills and testaments of the estates of de%eased persons lea'ing property $ithin the territorial 1urisdi%tion of the <ourt* n other $ords, the >igh <ourt has the 1urisdi%tion to deal $ith testate estates* E'en if su%h an estate falls under the definition of a small estate, 9 it shall not affe%t the e?%lusi'e 1urisdi%tion of the >igh <ourt relating to the grant of pro!ate or letters of administration in any %ase $here the de%eased has left a 'alid $ill or other testamentary disposition in respe%t of the small estate* The grant shall ha'e effe%t as if the estate had not !een a small estate*7 -e'ertheless, it must !e noted that the Administration of the @eligion of slam statutes= pro'ides that the Syariah <ourtA shall ha'e the 1urisdi%tion to hear and
B

A paper presented at the 6th Asian #a$ nstitute Annual <onferen%e, Fa%ulty of #a$, -ational &ni'ersity of Singapore, 31 May C1 June 2012* *B Assistant +rofessor, Ahmad !rahim "ulliyyah of #a$s, nternational slami% &ni'ersity Malaysia and may !e rea%hed at a(malh)iium*edu*my 1 5eneral appli%ation means that the statutes are appli%a!le to !oth Muslim and nonCMuslim ali(e* 2 A!dul >amid Mohamad, DAdministration of property in Malaysia: A %i'il and Shariah la$ perspe%ti'eE F2002G M#J i* 3 A(mal >idayah >alim, Administration of Estates in Malaysia: Law and Procedure , S$eet H Ma?$ell Asia, +etaling Jaya, 2012 at pp* 1C2* The definition refers to a %ase of partial intesta%y* See se%tion I, 4istri!ution A%t 167I* 4 Small estate refers to an estate of a de%eased person %onsisting $holly or partly of immo'a!le property and not e?%eeding t$o million ringgit in total 'alue* See se%tion 3:2;, Small Estates :4istri!ution; A%t 1677* 5 Se%tion 7, Small Estates :4istri!ution; A%t 1677* 6 The statutes pro'ide for the statutory frame$or( for the administration of slami% la$ among Muslims in Malaysia* 7 Malaysian legal system is generally !ased on the dual system of %ourts* A parallel system of Syariah <ourt is stru%tured along the same lines as the %i'il %ourts in matters relating to the Muslim personal la$* ,y 'irtue of Arti%le 121:A; of the Federal <onstitution of Malaysia, the >igh <ourts and inferior %ourts esta!lished !y federal la$ shall ha'e no 1urisdi%tion in respe%t of any matter $ithin the 1urisdi%tion of the Syariah %ourts as spe%ified in the State #ist as set out in paragraph 1 of #ist of the

determine all a%tions and pro%eedings in $hi%h all the parties are Muslim and $hi%h relate to, inter alia the $ills of a de%eased Muslim and the di'ision and inheritan%e of his testate or intestate property*I >en%e, this paper see(s to analy/e the 1urisdi%tion of the >igh <ourt and Syariah <ourt o'er testate estates in Malaysia* The analysis $ould in%lude the administration of testate estates !y !oth %ourts, the nature of $ill e?e%uted !y nonCMuslims and Muslims in Malaysia and the effe%t of the e?isten%e of su%h $ill to the administration of the de%eased2s estate* The paper $ould also analy/e the appli%a!ility the @ules of the >igh <ourt 16I0, !eing a statute of general appli%ation that regulates the pro%edure for the grant of pro!ate and letters of administration, to the Muslims2 $ills in Malaysia* Ad'inistration of *estate Estates -y the )i.h Court The >igh <ourt has the 1urisdi%tion to deal $ith a testate estate !y 'irtue of se%tion 29:f; of the <ourts of Judi%ature A%t 16=9 :A%t 61;* The se%tion pro'ides for the 1urisdi%tion of the >igh <ourt to grant pro!ates of $ills and testaments of the estates of de%eased persons lea'ing property $ithin the territorial 1urisdi%tion of the <ourt* >en%e, e'en if su%h an estate falls under the definition of a small estate, 6 it shall not affe%t the e?%lusi'e 1urisdi%tion of the >igh <ourt relating to the grant of pro!ate or letters of administration in any %ase $here the de%eased has left a 'alid $ill or other testamentary disposition in respe%t of the small estate* The grant shall ha'e effe%t as if the estate had not !een a small estate*10 The administration of testate estates !y the >igh <ourt is go'erned !y the +ro!ate and Administration A%t 1676 :A%t 6A; and the @ules of the >igh <ourt 16I0 F+&:A; 70016I0G* The former pro'ides for the la$ relating to the grant of pro!ate and letters of administration* The latter, on the other hand, regulates the pro%edures for the appli%ation of su%h grants* The o!1e%t of applying for the grant of pro!ate or letters of administration 11 is to ena!le the appli%ant to deal $ith the de%eased2s estate* f a person dies lea'ing !ehind a 'alid $ill and ha'ing appointed an e?e%utor $ho is $illing to a%t as su%h, the e?e%utor has to o!tain a grant of pro!ate* 12 Although an e?e%utor deri'es his title and authority from the $ill of his testator and not from any grant of pro!ate, the o!taining of the pro!ate $ill ensure the 'alidation of his a%tions* n other $ords, pro!ate formali/es the authority of the e?e%utor to %arry on the affairs of the de%eased*13
-inth S%hedule of the Federal <onstitution* The spe%ified matters in%lude slami% la$ relating to su%%ession, testate and instestate* 8 Se%tion =1:3;:!;:'; and :'iii;, Administration of the @eligion of slam :State of Selangor; Ena%tment 2003* Similar pro'isions are found in the Administration of the @eligion of slam statutes of other states in Jest Malaysia on the 1urisdi%tion of the Syariah <ourts to hear and determine all a%tions and pro%eedings in $hi%h all the parties are Muslim* 9 Small estate refers to an estate of a de%eased person %onsisting $holly or partly of immo'a!le property and not e?%eeding t$o million ringgit in total 'alue* See se%tion 3:2;, Small Estates :4istri!ution; A%t 1677* 10 Se%tion 7, Small Estates :4istri!ution; A%t 1677* 11 The grants are also referred to as the grant of letters of representation* 12 A%%ording to se%tion 2, +ro!ate and Administration A%t 1676, 8pro!ate2 means a grant under the seal of the <ourt authori/ing the e?e%utor or e?e%utors therein named to administer the testator2s estate* The grant of pro!ate to an e?e%utor is go'erned !y se%tion 3, +ro!ate and Administration A%t 1676* 13 5 @aman, Probate and administration in in!apore and Malaysia, #e?is -e?is, 2007, p* 6*

The letters of administration,19 on the other hand, are granted in %ases $here the de%eased dies intestate* >o$e'er, an appli%ation for letters of administration shall also !e made in %ases $here a person dies lea'ing !ehind a 'alid $ill !ut $ithout ha'ing appointed an e?e%utor, or none of those appointed is a!le and $illing to a%t, or no e?e%utor sur'i'es the testator, or all the e?e%utors die !efore o!taining pro!ate or !efore ha'ing administered all the estate of the de%eased, or the e?e%utors appointed !y any $ill do not appear and e?tra%t pro!ate* 17 The grant shall !e in form of letters of administration $ith $ill anne?ed* The $ill is anne?ed to the letters of administration to demonstrate the intention of the testator relating to the distri!ution of the estate* The pro%edure for the appli%ation of su%h a grant is similar to the appli%ation of letters of administration* The grant of letters of administration $ith $ill anne?ed is go'erned !y se%tion 1= of the A%t*1= The administration of estates !y the >igh <ourt is go'erned !y 3rders A1 and A2 of the @ules of the >igh <ourt that regulate the la$ for nonC %ontentious and %ontentious pro!ate pro%eedings respe%ti'ely*1A -onC%ontentious pro!ate pro%eeding is a %ommon form pro%eeding $here there is no dispute as to the appli%ation for pro!ate or letter administration* Jhere there is a dispute, the pro!ate pro%eeding $ill !e in the form of an a%tion in %ourt* The pro%eedings then !e%ome %ontentious* Ad'inistration of "us(i's/ *estate Estates -y the Syariah Court n the pro%ess of estates administration, the role of the Syariah <ourt differs from the role of the >igh <ourt in a $ay that the Syariah <ourt is not empo$ered to dire%tly distri!ute the de%eased2s estate* The Syariah <ourt $ill !e resorted to, only if, in the %ourse of any pro%eedings relating to the administration or distri!ution of the estate of a de%eased Muslim, an order from the Syariah <ourt is reKuired for the purpose of determining any issue arising in the pro%ess of administration or distri!ution of the estate*1I n its %i'il 1urisdi%tion, the Syariah <ourt has the 1urisdi%tion to determine inter alia, the issues relating to the $ills of a de%eased Muslim and the di'ision and inheritan%e of testate or intestate property of a Muslim* 16 >o$e'er, its 1urisdi%tion is
14

The $ord DadministrationE means, $ith referen%e to the estate of a de%eased person, letters of administration issued !y the <ourt $hether general or limited or $ith the $ill anne?ed or other$ise authori/ing the person or persons therein named to administer the de%eased person2s estate in a%%ordan%e $ith la$* See se%tion 2, +ro!ate and Administration A%t 1676* 15 Se%tion 1=, +ro!ate and Administration A%t 1676* These %ases are (no$n as failure of the e?e%utor* n other $ords, there is no pro'ing e?e%utor* 1= 3rder A1 rule 1A, @ules of the >igh <ourt 16I0* Se%tion 1= of the +ro!ate and Administration A%t 1676 pro'ides that in su%h a %ase, a prior right to the grant shall !elong to the follo$ing persons in the follo$ing order: :a; a uni'ersal or residuary legatee. :!; a personal representati'e of a de%eased uni'ersal or residuary legatee. :%; su%h person or persons, !eing !enefi%iaries under the $ill as $ould ha'e !een entitled to a grant of letters of administration if the de%eased had died intestate. :d; a legatee ha'ing a !enefi%ial interest. and :e; a %reditor of the de%eased* 17 See 5 @aman, Probate and Administration in in!apore and Malaysia , #e?is -e?is, Singapore, 2007 p*I7* 1I !id* p 20* 16 Se%tion =1:3;:!;:'; and :'iii;, Administration of the @eligion of slam :State of Selangor; Ena%tment 2003* Similar pro'isions are found in the Administration of the @eligion of slam statutes of other states in Jest Malaysia on the 1urisdi%tion of the Syariah <ourts to hear and determine all a%tions and pro%eedings in $hi%h all the parties are Muslim*

limited to the determination of the disputes relating to su!stanti'e la$ on wassiyyah only* The Syariah <ourt has no 1urisdi%tion to grant pro!ate or letters of administration $ith $ill anne?ed although the it in'ol'es the administration of Muslims2 testate estates*20 #ature of wi((s Jhilst the nonCMuslims ha'e an unfettered right to dispose of their property !y a $ill, the Muslims2 testamentary disposition is su!1e%t to limitations* The Jills A%t 1676 :A%t 39=; $hi%h go'erns the ma(ing of a $ill in Jest Malaysia, does not apply to the $ills of persons professing the religion of slam $hose testamentary po$ers shall remain unaffe%ted !y the A%t*21 For the Muslims, the distri!ution and the right to su%%ession are dependent on and go'erned !y slami% rules of su%%ession* Wills of Non-Muslims A%%ording to se%tion 2:2; of the Jills A%t 1676, the $ord 8$ill2 means a de%laration intended to ha'e legal effe%t of the intentions of a testator $ith respe%t to his property or other matters $hi%h he desires to !e %arried into effe%t after his death* This in%ludes a testament, a %odi%il and an appointment !y $ill or !y $riting in the nature of a $ill in e?er%ise of a po$er and also a disposition !y $ill or testament of the guardianship, %ustody and tuition of any %hild* A $ill in the physi%al sense may, then, !e defined as a de%laration in a pres%ri!ed form of the intention of the person ma(ing it of the matters $hi%h he $ishes to ta(e effe%t on or after his death, until $hi%h time it is re'o%a!le*22 As for the nonCMuslims, the ma(ing of a $ill shall determine the method on ho$ the distri!ution of his property $ill !e %arried out* The person $ho ma(es the $ill or the testator has unfettered right to dispose of his property !y his $ill to his preferred !enefi%iaries* >o$e'er, it is ad'isa!le that the testator should pro'ide reasona!ly or adeKuately for the maintenan%e of the follo$ing persons, if any: :a; a $ife or hus!and. :!; a daughter $ho has not !een married, or $ho is, !y reason of some mental or physi%al disa!ility, in%apa!le of maintaining herself* :%; a son $ho is !elo$ the age of 21* :d; a son $ho is !y reason of some mental or physi%al disa!ility, in%apa!le of maintaining himself* f the testator has not attended to the a!o'e, the <ourt may order payment out of the de%eased2s net estate upon an appli%ation made to it if the %ourt is of the opinion that the disposition of the de%eased2s estate effe%ted !y his $ill, or the la$ relating to intesta%y, or the %om!ination of his $ill and that la$, is not su%h as to ma(e reasona!le pro'ision for the maintenan%e of su%h persons*23 The <ourtLs 'ie$ is that, the o!1e%t of ma(ing the Jill is 1ust as mu%h to lea'e out people from getting as mu%h as it is to guarantee that the dependants are properly pro'ided for*
20 21

See Jumaaton"#aiton $ Anor% v% &a'a (i)aruddin bin &a'a *on! Chi+ F166IG = M#J 77=* Se%tion 2:2;, Jills A%t 1676* 22 <li'e M Margra'eCJones, Mellows:,he law of succession, 7th Edition, ,utter$orths, 1663, p* =* 23 Se%tion 3, nheritan%e :Family +ro'ision; A%t 16A1 :A%t 36;,

Wills of Muslims A wasiyyah or $ill means an i-rar29 of a person made during his lifetime $ith respe%t to his property or !enefit thereof, to !e %arried out for the purposes of %harity or for any other purpose permissi!le !y slami% la$, after his death*27 A $ill of a Muslim or may !e made orally*2= The general prin%iple of the slami% la$ on !eKuest is that testamentary dispositions may not surpass oneCthird of the estate of the de%eased* This rule is deri'ed from the report !y the +rophet2s %ompanion, Sa2ad i!n A!i JaKKas $ho said: ,he Prophet came to visit me in my sic+ness% . was then at Mecca and did not li+e to die at a place from where . had mi!rated% ,he Prophet of /od said: 0/od shall have mercy on .bn *afra1%2 . said to the Prophet3 04 Prophet5 . am wealthy and my only heir is my dau!hter% Permit me that . ma+e a will of my entire property%2 (e said3 0*o2% . said3 0 hould . ma+e a will of two6thirds of my property72 (e said3 0*o2% . said3 0Permit me for a third%2 ,he Prophet replied3 08ou may ma+e a will of a third3 althou!h this is also too much% ,o leave after you your heirs well to do is better than you leave them poor and in want whilst others meet their needs%E2A n hai+ Abdul Latif v% hai+ Elias 9u:;<3 it $as held that that under Muslim la$ a testator has authority to dispose of not more than oneCthird of the property !elonging to him at the time of his death. the remaining t$oCthirds of su%h property must des%end in fi?ed proportions to those affirmed !y Muslim la$ to !e his heirs* Another limitation for Muslims $ill is that it must not attempt to fa'our one heir !y gi'ing him a larger share of the estate than he is entitled to !y Muslim la$ $ill also !e %ompletely in'alid $ithout the permission of the other heirs* This is !ased on a hadith reported !y A!u mamah: D. heard the Prophet said: 0Allah has already !iven to each entitled relative his proper entitlement% ,herefore3 no be-uest in favour of a le!al heir*E26

24

8.-rar2 means an admission made !y a person, in $riting or orally or !y gesture, stating that he is under an o!ligation or lia!ility to another person in respe%t of some right* See Muslim Jills :Selangor; Ena%tment 1666, s 2:1;* Similar pro'isions %an !e found in and Muslim Jills :-egeri Sem!ilan; Ena%tment 2009 and Muslim Jills :Mala%%a; Ena%tment 2007* 25 Muslim Jills :Selangor; Ena%tment 1666, s* 2:1;* 26 Se%tion 3, Muslim Jills :Selangor; Ena%tment 1666,* Similar pro'isions %an !e found in Muslim Jills :-egeri Sem!ilan; Ena%tment 2009 and Muslim Jills :Mala%%a; Ena%tment 2007* 27 AlC,u(hari3 ahih al69u+hari, translated !y Muhammad Muhsin "han, :"a/i +u!li%ation, 'ol* 9, 16A6;, p*3* 2I :1617; 1 FMS#@ 209. See also the %ases of &e =ill of M%Mohamed (aniffa3 deceased3 :1670; M#J 2I=* 29 AlC,u(hari3 ahih al69u+hari, p* =*

n the %ase of &e Man bin Mihat,30 it $as %learly stated that slami% la$ rigidly pres%ri!es the share of e'ery heir and no alteration of these shares may !e made !y a $ill, for a !eKuest to an heir reKuires the %onsent of all %oCheirs* t is to !e emphasi/ed that the wasiyyah, $ould not, in any $ay, affe%t the s%heme of distri!ution to the legal heirs* The property that !e%omes the su!1e%t of a 'alid wasiyyah $ould not !e part of the de%eased2s estate and shall !e e?%luded from the estate prior to the distri!ution of the residue $hi%h shall !e made a%%ording the rule of faraid or a%%ording to the family agreement, as the %ase may !e* *he 0osition of "us(i's/ wi((s under the Ru(es of the )i.h Court 1923 The pro%edures for the administration of a testate estate as pro'ided !y the @ules of the >igh <ourt 16I0 ha'e !een largely adopted from the -onC<ontentious @ules 1679 of England, $hi%h ha'e no$ !een superseded !y the -onC<ontentious @ules 16IA* The disposal !y a $ill is a %on%ept !orro$ed from @oman la$* The @oman %onKuest of England left !ehind prin%iples of la$ $hi%h $ere a%%epted and adapted to suit lo%al reKuirements*31 <onseKuently, some of the pro'isions of the @ules of the >igh <ourt 16I0, espe%ially in relation to the e?isten%e of a $ill that determines the type of grant of representation, are not appli%a!le to the $ills of Muslims although the @ules are meant to !e a statute of general appli%ation* 32 This is !e%ause the @ules refer to the $ill e?e%uted a%%ording to the Jills A%t 1676 $hi%h is not appli%a!le to the person professing the religion of slam* The rele'ant pro'isions of the rules under 3rder A1 are as follo$: Rule 11. Evidence as to terms, conditions and date of execution of will. (O 71 r 11) (>) =here there appears in a will any obliteration3 interlineation3 or other alteration which is not authenticated in the manner prescribed by section 1 of t!e Wills Ordinance 1" "? or by the re6e:ecution of the will or by the e:ecution of a codicil3 the &e!istrar shall re-uire evidence to show whether the alteration was present at the time the will was e:ecuted and shall !ive directions as to the form which the will is to be proved: Provided that this para!raph shall not apply to any alteration which appears to the &e!istrar to be of no practical importance% (;) .f from any mar+ on the will it appears to the &e!istrar that some other document has been attached to the will3 or if a will contains any reference to another document in such terms as to su!!est that it ou!ht to be incorporated in the will3 the &e!istrar may re-uire the document to be produced and may call for such evidence in re!ard to the attachin! or incorporation of the
30

F16=7G M#J 1* See also iti bt 8atim v% Mohd *orbin 9u'al :162I; = FMS#@ 137, and Amanullah bin (a'i (assan v% (a''ah Jamilah binte hai+ Madar :16A7; 1 M#J 30* 31 !id* p*2. Mahinder Singh Sidhu, ,he Law of =ills Probate Administration and uccession , nternational #a$ ,oo( Ser'i%es, "uala #umpur, 166I, p*1* 32 A(mal >idayah >alim, Administration of Estates in Malaysia: Law and Procedure , S$eet H Ma?$ell Asia, +etaling Jaya, 2012 p* 9*

document as he may thin+ fit% (@) =here there is a doubt as to the date on which a will was e:ecuted3 the &e!istrar may re-uire such evidence as he thin+s necessary to establish the date% Rule 1#. Will not $roved under section % of wills Ordinance. (O 71 r 1#) *othin! in rule A3 >B3 >> or >; shall apply to any will which it is sou!ht to establish otherwise than by reference to section of t!e Wills Ordinance 1" "& but the terms and validity of any such will must be established to the &e!istrarCs satisfaction% Rule 1 . Wills of $ersons on militar' service and seamen. (O 71 r 1 ) .f it appears to the &e!istrar that there is prima facie evidence that a will is one to which section (% of t!e Wills Ordinance 1" "& applies the will may be admitted to proof if the &e!istrar is satisfied that it was si!ned by the testator or3 if unsi!ned3 that it is in the testatorCs handwritin!% Rule 1). *rant to attestin+ witnesses etc. (O 71 r 1)) =here a !ift to any person fails by reason of section &" of t!e Wills Ordinance 1" "& (which provides that !ifts to attestin! witnesses or their spouses shall be void)3 such person shall not have any ri!ht to a !rant as a beneficiary named in the will3 without pre'udice to his ri!ht to a !rant in any other capacity% ? *ow =ills Act >A<A (Act @DE)% ,ased on the a!o'e rules, it %an !e said that the referen%e to testate estates in the @ules of the >igh <ourt 16I0 may not in%lude the estate of a Muslim dying lea'ing a $ill* E'en if the Muslims2 $ills are to !e %onsidered as a pri'ilege $ill as it %an !e made orally, still the $ills are not go'erned !y the pro'isions of the @ules* This is !e%ause an oral $ill is %onsidered as a pri'ilege $ill under the @ules of >igh <ourt 16I033 and only refer to the pri'ileged $ills of soldiers, airmen and sailors as pro'ided !y se%tion 2= of the Jills A%t 1676* The appli%ation for the grant of pro!ate, ho$e'er, may !e reKuired if the wasiyyah %ontains a pro'ision for the appointment of an e?e%utor to %arry out the de%eased2s affairs upon the latter2s death* Su%h a wasiyyah is termed as a wisayah under slami% la$* <onsidering the nature of the wisayah, it is su!mitted that this is the (ind of instrument that reKuires the appli%ation for the grant of pro!ate from the >igh <ourt and not the instrument re%ogni/a!le as wasiyyah or $ill in slam*

33

See 3rder A1 rule 17, @ules of the >igh <ourt 16I0*

Therefore, as the @ules of the >igh <ourt is a statute of general appli%ation, the pro'isions must !e amended to also in%lude the $ills e?e%uted !y the Muslims in Malaysia, parti%ularly if the $ill %ontains the appointment of an e?e%utor or wasi $hi%h is (no$n as wisayah in order to grant proper authority to the appointed wasi in the administration of the de%eased testate estate* Conc(usion The 1urisdi%tion of the >igh <ourt relating to the grant of pro!ate and letters of administration to the e?e%utor and administrator respe%ti'ely is e?%lusi'e in any %ase $here the de%eased has left a 'alid $ill or other testamentary disposition* >o$e'er, as far as the Muslims2 estates are %on%erned, any disputes as to the su!stanti'e matters relating to the $ills e?e%uted !y Muslims, the 1urisdi%tion lies in the Syariah <ourts* -e'ertheless, if the Muslims2 $ills %ontains the appointment of an e?e%utor or wasi that ne%essitates the appli%ation for pro!ate, the appli%ation for the administration of the estates $ill still ha'e to !e made to the >igh <ourt*