I can assure everyone that coining “Civil High Court Registrars” in the same sentence as “all you can eat buffet voucher” as a heading for a serious legal topic was not an easy idea to arrive at.
It took just two court appearances, before two different Registrars, on two different dates, for two very similar uncontested probate applications arising from Islamic testacy – yet producing two very different results – to spur inspiration in me, for reasons I will explain later.
This is the essence of this essay – seeing the increase in inconsistency in the application of the law by Registrars, which now necessitates some elaboration.
The first court appearance took place on June 19. The brief facts were that the deceased testator named only his son to inherit the entirety of his estate to the exclusion of his widow in spite of the fact that under the Islamic Laws of Inheritance (Faraid), both were eligible for inheritance.
However, the deceased’s will does spell out that should his heirs object to the manner of distribution, the principles of Faraid shall prevail, which in turn would mean the son and widow (defined as the Faraid heirs), would jointly inherit from his estate subject to fixed fractional portions for both as defined in the Holy Quran – the primary source of Islamic Law (specifically, verses 11 and 12 of Surah Annisa).
It is important to be mindful that these Faraid heirs are persons that cannot be excluded under any circumstances from inheriting unless by their own choosing, they renounce that right, and do so after the death of the deceased, and not before – a position officially addressed in the Decision of the Fatwa Committee of the State of Selangor No. 2/2018 dated April 20, 2018, with which the deceased’s will was consistent.
In understanding that inviolable position, the applicant, a trustee company appointed as executor in the deceased’s will, made the conscious decision to nevertheless add the widow’s name to the List of Heirs/Beneficiaries, a document required to be exhibited in the affidavit in support of the application.
It is that which the Registrar took exception to, a position hinged on his understanding of Paragraph 5 in Form 159, as appended to Appendix A of the Rules of Court 2012, which reads as follows:
A copy of the list of Beneficiaries named in the said Will of the said deceased is now produced and shown to me and marked as exhibit “…………” and annexed hereto
As the widow was not specifically named to receive anything in the deceased’s will, the Registrar was of the view that she should not be on the List of Heirs/Beneficiaries – that is a cursory take of Paragraph 5.
However, Paragraph 5 must be understood within the framework of Order 1, Rule 7, which reads as follows:
The Forms in Appendix A shall be used where applicable with such variations as the circumstances of the particular case require.
From that prism of Order 1, Rule 7, Paragraph 5 cannot be said to be substantive law, but a mere procedural guide, where a variation therefrom is not only allowed, it also cannot be used as a justification to withhold the granting of Probate once all the statutory requirements as stated in Section 5 of the Wills Act 1959 are present in the document tendered as a will.
After some back and forth during which the Registrar did not question the validity of the deceased’s will, he had no other option but to grant Probate – the inferred flipside of Order 71, Rule 9(3), and with the List of Heirs/Beneficiaries, as filed, intact.
Other matters under the circumstances are immaterial to his consideration and cannot be used as a precondition for the issuance of that Probate.
The second case took place on June 23. The facts were somewhat similar, including the structure of the will, with the exception that the deceased testator, an unmarried lady who was survived by her siblings as her only Faraid heirs, instead named her nephew and niece as the sole beneficiaries.
The applicant was the same trustee company as before and named the siblings together with the nephew and the niece to the List of Heirs/Beneficiaries. Here the Registrar refused to grant Probate unless the names of the siblings were removed.
So as not to delay the winding up of the deceased’s estate, and with instructions from my client, we conceded in spite of knowing that that direction had no legal basis and undertook to refile a new List of Heirs/Beneficiaries with only the nephew and the niece as those entitled under the estate.
To challenge every single erroneous direction as and when it comes would simply be too tiresome and costly, and lawyers like me will occasionally capitulate simply to expedite matters.
Unfortunately, in doing so, such directions are left to appear as though they have the force and standing of law, when, as a matter of fact, they do not.
And for as long as such direction is not successfully appealed against, it continues to be perpetuated by other like-minded Registrars as if procedurally correct.
It must be reiterated that the second Registrar’s position is clearly untenable. Once the will has been examined to be duly executed, her role is simply to grant Probate, not to impose needless bureaucratic hurdles by directing the amending of the List of Heirs/Beneficiaries as a precondition to the issuance of the same. In placing that hurdle, she acted ultra vires.
Anyway, what we have from the two cases is that the facts are similar, but the outcome is very much different, which clearly suggests to me that the Registrars themselves either do not know the law or extrapolate from a position without legal basis or clear understanding of their statutory limitations.
As for the latter, some Registrars will rest their unquestionable authority on the plain wording of Order 71, Rule 4(1) which reads as follows:
The Registrar shall not allow any grant to be issued until all inquiries which he may see fit to make have been answered to his satisfaction.
It is most regrettable that these Registrars who openly invoke that Rule 4(1) treat it akin to “an all you can eat buffet voucher”, something which gives them carte blanche authority without any form of restraint.
Surely that cannot be so, otherwise Registrars could unreasonably deny Probate for whatever reason they see fit.
A more reasonable interpretation of that Rule 4(1) would be to understand it by reading the immediate Rule 4(2) as follows:
The Registrar may require proof of the identity of the deceased or of the applicant for the grant beyond that contained in the originating summons.
Merging the two rules, a Registrar’s inquiries cannot sensibly be read as unfettered but must relate to and be limited to verifying the identity of the deceased and the applicant upon whom the application rests.
Even if Rule 4(2) is not treated as an exhaustive statement of what inquiries Rule 4(1) permits, that power must nonetheless be exercised consistently with the administrative, non-contentious purpose Order 71 exists to serve, and cannot be stretched to import an adjudicative function the Order was never designed to carry – again, such as directing the executor to amend the List of Heirs/Beneficiaries as a precondition for granting Probate.
On that note, it is worth citing the words of Roberts CJ of the High Court of Brunei in the case of Emran bin Junaidi & Anor v Hj Abu Bakar bin Hj Munaf & Ors [1997] 4 MLJ 269, regarding the powers exercised by a Registrar:
It would not […] be correct to say that the registrar should enjoy such powers unless these were specifically conferred upon him by the High Court Rules, or by legislation. It would be wrong for him to attempt to give himself wider powers unless these were supported by legislative provision.
Simply, no powers, however broad, are without limits, and this very principle is most authoritatively spelt out in the Federal Court case of Pengarah Tanah & Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135.
It is thus my hope that someone with authority within the judiciary will take notice of this unabated problem and effect change.
On a side note – for anyone thinking of applying for an uncontested Probate application where no one living and having a pulse opposes it, commence it nevertheless by way of writ as a contested Probate action under Order 72, Rules of Court, and name the assigned Registrar as the defendant, for, invariably, you will discover to your frustration that no one but that very special Registrar will prove to be your greatest obstruction.
And if such obstruction proves to be unjustifiable, the Registrar in question should be made to pay costs not just for needlessly dragging everyone into a misadventure, but for abjectly failing to understand basic estate law.
The views expressed here are the personal opinion of the writer and do not represent those of Twentytwo13.
