The Shah Alam Civil High Court must be lauded for its unrelenting tenacity in making probate applications arising from Muslim testacy (dying with a will) a needlessly miserable undertaking.
For a brief period last year, it suddenly denied any probate application, even when there was a duly executed will.
Through some erroneous legal reasoning, the registrars directed that the proper way to commence the winding-up process relating to a deceased person’s estate under testacy (at the Civil High Court) must be through an application for Grant of Letters of Administration (LA), with the deceased’s will annexed as an exhibit.
Besides being egregiously convoluted, this direction also plainly contradicts Section 16 of the Probate and Administration Act 1959. An application for an LA with a will annexed can only take place where there is no named executor in the deceased’s will, or, where there is a complete failure in that regard.
In response, I wrote a critical piece in May 2023 and suggested that any party subjected to that questionable procedure should challenge it.
I do not know whether my piece had any impact, but I was made to understand that there was a lull in that procedural aberration for the rest of 2023, and probate applications arising from Muslim testacy were allowed to resume (at the Shah Alam Civil High Court) in the traditionally understood manner.
Alas, normalcy was short-lived, and in August 2024, the Shah Alam Civil High Court found renewed vigour in reviving the procedural nostalgia of 2023. Once again, a simple uncontested, routine probate application (arising from Muslim testacy) was subjected to needless misery, now cloaked under a newfound legal reasoning, manifesting in the written decision by Datuk Hazizah Kassim, the Judicial Commissioner presiding over Ex Parte: Muhamad Faris bin Mohd Fathil, [2024] MLJU 2080 (ex parte Faris).
It is a lengthy read, comprising 118 numbered paragraphs with over 9,000 words, mostly in Bahasa Melayu.
It offers a stirring compendium of reasons for the dismissal of the probate application (para [2]). Needless to say, the applicant did not share that enthusiasm.
To understand the judicial commissioner’s reasoning before writing her decision, the salient facts of the case are as follows:
The deceased (Mohd Fathil) executed a will appointing his son, Muhamad Faris, as the principal executor of his estate.
If this failed, the executorship would pass to his next son, Muhamad Farid.
If both failed, the executorship would pass to Wasiyyah Shoppe Berhad, the trustee company responsible for drafting the deceased’s will.
The deceased had in his will expressed that certain immovable assets belonging to him were to be distributed according to his own formulation, not in accordance with Faraid (the Islamic principles of inheritance), though he made it clear this would only happen if his heirs agreed to it (item “7” of para [26]).
There is nothing exceptional about ex parte Faris, even regarding the fourth point, a situation acceptable under the edict of the Selangor State Fatwa Committee Meeting (Bil.2/2018 dated April 20, 2018).
In my over 27 years in estate law, ex parte Faris is a typical scenario where uncontested probate applications are filed, and probates are eventually granted as a matter of recourse.
So, it was surprising to read that the probate application in ex parte Faris was dismissed for the reasons given.
Principally, the judicial commissioner’s written decision rests on the juristic postulation that no Muslim will can be subjected to probate at the Civil High Court unless it is first verified by the Syariah Court (para [38]) – a stance suggesting that Civil High Court registrars or judges lack the capacity to understand or identify what constitutes a valid will in Islam – this is not rocket science.
It also ignores the reality that there is much commonality between what constitutes a valid will for Muslims and non-Muslims, save for the requirement that a Muslim will must be witnessed by at least two male witnesses, or two female witnesses and one male witness, according to the Shafi’i school of Islamic thought, the dominant theological position in Malaysia.
This brings us to the first point – why the probate application was dismissed.
The judicial commissioner opined that as the Civil High Court does not have jurisdictional competency to deliberate on matters relating to Islam, it cannot officially ascertain whether a Muslim will has been validly constituted (para [55]).
She believes this falls under the Syariah Court’s purview.
Respectfully, this view is problematic and a complete departure from how probate applications have been conducted for over 67 years since independence.
The case at hand pertains to a probate application, which, under the Federal Constitution (Federal List), is the Civil Court’s sole purview (at least in Peninsular Malaysia), not the Syariah Court’s.
The emphasis should be on whether the will brought before the Civil High Court meets the statutory criteria under the Wills Act 1959, without distinction to the religious affinity of the deceased.
If the statutory criteria under the Wills Act 1959 (specifically Sections 3, 4, and 5) are met, the will must be presumed valid unless evidence proves otherwise.
However, the judicial commissioner contends that the Wills Act 1959 applies only to non-Muslim wills (para [54]).
This view stems from an opaque reading of Section 2(2) of the Wills Act 1959, focusing solely on: “This Act shall not apply to the wills of persons professing the religion of Islam…”
Those with this view conveniently ignore the proviso: “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.”
If the Wills Act 1959 does not apply to Muslims in its entirety, it should state so unequivocally. The presence of the proviso suggests otherwise.
In my view, the Wills Act 1959 applies to all wills, except for matters relating to the testamentary powers of Muslims. Again, this is about proving a will based on common statutory criteria.
No legislation, whether Federal or State, mandates verification by the Syariah Court, nor does case law support this, except the present one.
Verification is typically the result of a dispute (by the deceased’s heirs) over distribution, not the will’s validity. The two should not be conflated.
The judicial commissioner seems to have conflated these two issues, treating them as intertwined without distinction.
In context, the will in ex parte Faris may be valid under the Wills Act 1959, and the executor named could be confirmed by the Civil High Court, yet the deceased’s heirs could still object to the distribution.
This objection does not invalidate the will or render the probate application contentious – see paragraph 12-02, Williams, Mortimer and Sunnucks, Sweet & Maxwell, 22nd edition [2023] on “Executors, Administration and Probate”.
It simply means the executor cannot carry out the deceased’s proposed distribution but must follow Faraid principles.
In the absence of statutory provisions or case law, where does the judicial commissioner get the legitimacy to mandate verification? This brings us to the second point.
The judicial commissioner’s justification seems to derive from a broad interpretation of Order 71, Rule 4(1), Rule 4(2), and Rule 14 of the Rules of Court 2012 (paras [37], [38], and [48]), as quoted below:
Order 71, Rule 4
(1) 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;
(2) The Registrar may require proof of the identity of the deceased or of the applicant for the grant beyond that contained in the affidavit in support of the originating summons.
Order 71, Rule 14
Nothing in rule 9, 10, 11, or 12 shall apply to any will which it is sought to establish otherwise than by reference to Section 5 of the Wills Act 1959, but the terms and validity of any such will shall be established to the registrar’s satisfaction.
No matter how many times I read these rules, I struggle to be convinced that they contain indirect powers granting the Civil High Court the right to demand verification. Nothing in these rules suggests this, but perhaps I’m using the wrong laxative.
At best, these rules allow the court to make “inquiries” within the parameters of a probate application, but invoking them to demand verification is, with respect, an example of judicial overreach.
Until the corridors of power formally clarify that the Civil High Court has sole purview over all probate applications without requiring Syariah Court verification (except in clearly provided instances), I am confident that the Shah Alam Civil High Court will remain the epicentre of legal headaches for all probate applications arising from Muslim testacy.
The views expressed here are the author’s own and do not necessarily reflect those of Twentytwo13.
