Probate & Administration

In this practice area

Probate and Administration collects the disputes over the estates of deceased persons — the validity of wills, the grant and revocation of representation, and the administration and distribution of estates. The judgments concern testamentary capacity, the rights of beneficiaries, and the duties of executors and administrators under the Wills Act 1959 and the Probate and Administration Act 1959.

The validity of a will is a central subject. Judgments examine the requirements under sections 3 and 5 of the Wills Act 1959 — due execution, testamentary capacity, and knowledge and approval of the contents — and the effect of suspicious circumstances surrounding the making of a will. The doctrine of mutual wills features prominently, including whether substantially identical wills made by spouses were intended to be irrevocable, so that a later inconsistent will is held on a constructive trust, and the use of extrinsic evidence to establish the necessary agreement.

Grants of representation and their revocation form a second strand. The collection includes letters of administration, letters of administration de bonis non for an unadministered estate, and the revocation of a grant or removal of a co-administrator under section 34 of the Probate and Administration Act 1959. The rights of illegitimate children to inherit, and the application of the rules of intestate succession, also appear, together with disputes among stakeholders and former administrators.

The cases sit predominantly in the High Court, which exercises the probate jurisdiction, with appeals to the Court of Appeal and, in a small number, the Federal Court. As a whole the area shows how the Malaysian courts give effect to the wishes of the deceased where a valid will exists, and apply the statutory rules of administration and succession where it does not — protecting beneficiaries and holding personal representatives to their duties. Because these disputes often arise among family members, the judgments frequently turn on questions of intention and good faith as much as on the formal requirements of the succession statutes.