Petition for Probate

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MALAYSIA LEGAL PROCESS

TESTACY (With A Will) – HOW TO OBTAIN A PROBATE

Procedure to Petition for Probate

Order 71 Rules Of High Court 1980, Malaysia

Preliminary Steps

1. Extract Death Certificate from Register of Births and Deaths;

2. Obtain the Will and check the validity against the Wills Act, 1959, Malaysia;

3. Make certified copies of Death Certificate and Will

Petition

1. Petition in Form 168 verified on oath in an affidavit by the executor.

2. Provide Form 169 if the executor applying Probate is the substitute executor and state whether any minor beneficiary is involved.

3. If application for Grant of Probate is made after 3 years from date of death … give reason for delay.

4. Together with petition, attach the Will, certified copy of the Will and Death Certificate.

5. If Will does not contain attestation clause, Registrar requires an affidavit from attesting witnesses or from any person who was present at the time of execution or from any person who can show that the signature on the Will is that of the testator.

6. File in Petition with Affidavit of Estate Duty that list assets and liabilities of testator (if deceased before 1st November, 1991 otherwise no need for Estate Duty Affidavit).

GRANT OF PROBATE

LAWS OF MALAYSIA
Act 97  PROBATE AND ADMINISTRATION ACT, 1959

Grant of Probate to Executor 3.
(1) Probate may be granted to an executor appointed by a Will.
(2) The appointment of an Executor may be express or implied.
(3) Subject to Section 4, where several executors are appointed Probate may be granted to them all simultaneously or at different times.

Powers of Court to re-seal 52.

Where a Court of Probate in any part of the Commonwealth has, either before or after the passing of this Act, granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters of administration so granted, or a certified copy thereof, sealed with the seal of the court granting the same, may, on being produced to and a copy thereof deposited in the High Court, be sealed with the seal of the High Court, and thereupon shall be of the like force and effect, and have the same operation in Malaysia, as if it were a grant made by the High Court:
Provided that – (a) if it appears that the deceased was not, at the time of his death, domiciled within the jurisdiction of the Court from which the grant issued, the seal shall not be affixed unless the grant is such as the High Court would have made; and
(b) before the probate or letters of administration is sealed with the seal of the High Court, the Court may require such evidence, if any, as it thinks fit as to the domicile of the deceased person.

Application to British Courts in foreign countries 53.

Any probate or letters of administration granted by a British Court in a foreign country may be sealed in Malaysia in the manner provided in Section 52, and this Part shall apply accordingly with the necessary modifications.

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