It appears of late, the Civil High Court Registrars in Shah Alam (Shah Alam Registrars) have gone rogue.
Not the affable kind – battling evil empires in galaxies far, far, away, but by helping estate lawyers (like myself) to get acute acid reflux.
They no longer allow probate applications to be made favouring Muslim estates, even when there is a named executor in the deceased’s will.
Instead, the Shah Alam Registrars now insist that an executor can only legally take charge of the deceased’s estate if he or she first commence an action by way of applying for a Grant of Letters of Administration (LA), but ironically, allowing still, for that very same Muslim will to be annexed as reference (in the Civil High Court application).
The farcical ramification in that is to arbitrarily ignore from the outset that the deceased Muslim had, as a matter of fact and law, made clear provisions to have an executor for the administration of his or her estate.
Such unilateral direction is clearly erroneous.
In that regard, the law is well established and unambiguous as to when exactly such an application (in the instance as directed by the Shah Alam Registrars) can be made.
Section 16 of the Probate & Administration Act 1959 [Act 97] provides for only five distinct situations as follows as to when that can happen:
- no executor is appointed by a will;
- the executor or all the executors appointed by will are legally incapable of acting as such, or have renounced;
- no executor survives the testator;
- all the executors die before obtaining probate or before having administered all the estate of the deceased; or
- the executors appointed by any will do not appear and extract probate.
From the statutory list, it is clear that the application for an LA with a will annexed can only be made when there is a failure of executors (as far as Section 16 is concerned).
If there is no failure, then it is incumbent upon the Shah Alam Registrars, or any Civil High Court Registrar for that matter, to allow for the probate application to go through. To do otherwise, is to operate outside the ambit of the law.
In that regard, I am reminded of the words of Roberts CJ in Emran bin Junaidi & Anor v Hj Abu Bakar bin Hj Munaf & Ors [1997] 4 MLJ where he states:
“It would not be correct to say that the registrar should enjoy such powers unless these were specifically conferred by him by the High Court Rules, or by other legislation. It would be wrong for him to attempt to give himself wider powers unless these were supported by legislative provision.”
In the context of Roberts CJ’s judicial pronouncement, the Shah Alam Registrars need to unequivocally show that their direction to prevent probate applications from being filed arising from Muslim wills is supported in law.
It is simply not good enough if they were to claim that that direction came from higher up in authority without more, which I have been made to understand is the case.
From where I am standing, unless it can be empirically demonstrated that “higher up in authority” pivots on the Shah Alam Registrars receiving divine revelation directly from God, thus needing no further corroboration beyond that, every other temporal direction given within the subdued settings of a courtroom, should, as stated before, have the force of written law behind it.
If there is none, as it appears to be so with the Shah Alam Registrars, then that direction cannot be complied with. Should they so insist, the solicitor on record for the affected applicant should then advise his or her client, to appeal to the presiding judge in chambers for High Court finality on the matter.
But why the sudden departure from the norm, after decades in which the Shah Alam Registrars were, as a matter of recourse, issuing probates arising from Muslim wills without problems?
My guess is that someone within the corridors of power and influence at the Civil High Court in Shah Alam was suddenly awakened by an epiphany on how to treat wills executed by Muslims vis-à-vis the reading of Wills Act 1959 [Act 346], and that has avalanched into the sudden madness it is today.
The imperative importance of Act 346 is that it lists out the statutory conditions that must be met before any Civil High Court can accept whether a will is valid or not in law.
If all the conditions are met (as stated therein), there is then a statutory presumption that the will is in fact valid, and probate must accordingly be granted.
The problem I assume that is confounding the Shah Alam Registrars centres on the statement in Section 2(2) of Act 346, which reads as follows:
“This Act shall not apply to the wills of persons professing the religion of Islam whose testamentary powers shall remain unaffected by anything in this contained.”
I am guessing that the Shah Alam Registrars are taking the words “This Act shall not apply to the wills of persons professing the religion of Islam …..” as a total prohibition from applying to Muslims, and by extension, they are unable to use the same as the criteria to ascertain the validity of a Muslim will, hence, the direction to apply by way of Grant of LA with will annexed.
Respectfully, I am inclined to hold that that view is misplaced and wrong.
If indeed Act 346 does not apply to Muslims in its entirety, it would simply state so, BUT on closer examination, it clearly provides a specific qualification to that statutory purport with the words “… whose testamentary powers shall remain unaffected …”.
My reading of Section 2(2) of Act 346 is that the same cannot affect the manner in which a Muslim testator draws the terms of how his or her estate is to be distributed (as per will). That is outside the scope of Act 346.
That said, Act 346 remains central as a statutory reference point for the determination of what constitutes a valid will, and that should not be dependent on the religious affinity of the testator (the person who writes the will). It should, and must apply to all wills required for proof in the Civil High Court without any exceptions.
And by the dictates of the Federal Constitution [item 4(e)(i), 9th Schedule] read in consonance with Section 3 of the Courts of Judicature Act 1964, the process to extract probate, should, at the very least, be uniform in Peninsular Malaysia.
So, that process, in which a will is brought to proof at the Shah Alam Civil High Court should mirror with the Kuala Lumpur Civil High Court, and every other Civil High Court in Peninsular Malaysia. For the record, it was only as recent as April 19 this year that I obtained probate arising from a Muslim will at the Kuala Lumpur Civil High Court. This is proof enough for me that the Shah Alam Registrars have gone rogue.
It is important to also bear in mind here that no Syariah High Court in Peninsular Malaysia can issue probates for Muslim estates, and until the Federal Constitution is amended to state otherwise, the Civil High Court remains the sole forum in that regard.
The Syariah High Court can however (as in the state of Selangor, and most probably throughout the Federation) provide means to which a Muslim will can be verified – i.e. whether it is valid from an Islamic perspective. Even then, that process is not statutorily mandated as a precondition to a Muslim will’s validity but only becomes a possible legal recourse in the event there is a dispute over same by any party, usually, by the deceased’s heirs and no other (Rule 23, Part IX, Muslim Wills Management Rules 2008)(Selangor).
In consequence thereto, if there is no contention by the deceased’s heirs, it behoves not for any Civil High Court Registrar to question the validity of a Muslim will with the exception of matters pertaining to Act 346 pre-conditions.
If the Shah Alam Registrars were to take upon themselves to compel any applicant for probate to verify first the validity of a Muslim will before allowing the probate application proper to take motion, they would, as a matter of fact and law, be encroaching into the domain of Syariah Courts, which they are clearly prohibited from doing, pursuant to Article 121(1A) of the Federal Constitution.
At the end of the day, I really hope this piece will reach the ears of the Shah Alam Registrars, and they in turn, will stop imaginatively trying to expound on matters which are already settled in law, and as important, refraining from deliberating over matters that are outside their purview.
However this goes, it is perhaps safe for me to say for the moment at least, that I have resigned not to park my car anywhere within the Shah Alam Civil High Court premises.
This is the personal opinion of the writer and does not necessarily represent the views of Twentytwo13.
