I would be remiss if I did not start by acknowledging William Shakespeare for inspiring the title to this piece but, beyond the first three words, the commonality ends.
This is meant more for estate practitioners, not thespians. Still, I invite the general public to glimpse the occasional circuitous drama that can sometimes needlessly unfold at the civil High Courts, and this is one such tale – purposefully written more akin to a comedy skit than a worthy article destined for a legal journal.
This parody began on Oct 14, 2025 at the Kuala Lumpur High Court, involving a simple ex parte application for a vesting order by the administrator to a deceased’s estate arising from Islamic intestacy (a Muslim dying without a will). The application sought to vest one of the deceased’s immovable assets, a terrace house, in the only son of the deceased, rather than having it shared among all five heirs in accordance with the principles of faraid (Islamic law of inheritance).
In support of the application was a Persetujuan Waris (heirs agreement) by way of statutory declarations (SDs), individually affirmed by the deceased’s heirs before a commissioner for oaths after the passing of the deceased, stating that they agreed to the arrangement.
There was nothing extraordinary about the application, something I have been accustomed to on a regular basis in my near 29-year legal career.
As such, I expected the usual approximate 20-minute turnaround – from introducing myself as the solicitor on record, making brief submissions on the application proper, to the eventual order-in-terms pronouncement by the presiding senior assistant registrar (SAR) as a matter of course.
Instead, and for the first time in such a relatively straightforward application, the SAR directed that the Persetujuan Waris must be in the form of affidavits.
For the benefit of laypersons, SDs and affidavits carry the same legal standing, that is, both are written statements made under oath and deposed as true. The difference is that affidavits are given specifically in the course of court proceedings, while SDs are standalone documents.
In any event, SDs may equally be admitted as evidence in court proceedings, provided they are introduced in accordance with the law, as held by the Court of Appeal in Lee Chye Yen [2014] 4 MLJ 595. Principally, the SDs must be exhibited in the manner prescribed under Order 41 Rule 11 of the Rules of Court 2012, which was duly done in the present application.
Armed with that knowledge, I objected to the SAR’s direction. In turn, the SAR fixed Nov 13, 2025 for me to appear before the High Court judge to argue my points.
In the interim, I took the opportunity to file written submissions – yes, several – in the hope that by the hearing date, the judge would be so overwhelmed by my persistence that he would grant order-in-terms as a mere formality. I am not entirely sure about the soundness of this strategy, but it does help to remain positive.
In those submissions, I raised what I believe to be an important legal point often overlooked. For applications made pursuant to Section 60(2) of the Probate and Administration Act 1959, it is only the concurrence of the administrator that is required.
There is no legal requirement to obtain the consent of the deceased’s heirs for such an application to succeed, although in practice, and as a matter of transparency, I would always advise procuring it.
Within that Section 60(2) framework, the High Court cannot in principle dismiss such an application even in the absence of a Persetujuan Waris, in whatever form.
This does not mean that an administrator has carte blanche to act at will. The administrator must always act in the best interests of the estate, a position supported by the High Court decision in Sivamni [2017] MLJU 1206, which followed the binding Court of Appeal authority in Lau Yoke Hee [2005] 3 CLJ 770.
Unfortunately, Nov 13, 2025 did not unfold as hoped.
The judge briefly reiterated that the Persetujuan Waris had to be in affidavit form. When asked for the legal basis, his reply was simply, “It is there”.
As I stood looking up at the judge, who enjoyed a clear vantage point of the courtroom, I wondered where exactly “there” was. Perhaps some hidden compartment in chambers where the best laws are kept. For the life of me, I was unaware of any such authority, though I concede I was not perched on high, but firmly grounded, body and mind, with all my human flaws graciously acknowledged.
The judge fixed another date, Nov 26, 2025, by which time I was to file the Persetujuan Waris in the directed format. Nov 26 came, my position unchanged, and the judge then fixed Dec 9, 2025 for his decision.
On Dec 9, the judge appeared visibly perturbed by my continued steadfastness and stood the matter down while attending to other hearings. After disposing of them, he returned to chambers, leaving me feeling unrequited.
During the adjournment, his interpreter approached me and mentioned that she had drawn the judge’s attention to existing precedents allowing Persetujuan Waris in SD form, as per my submissions. This gave me the impression that closure might finally be achieved that day. Instead, I was surprised to learn that the judge had referred the matter back to the SAR for a decision.
This was highly unusual. The matter was already before the judge, and in my understanding, it was for him to give finality, not to remit it to the SAR. Nevertheless, Dec 17, 2025 was fixed.
On that day, my return before the SAR felt entirely unwelcome. A tense exchange ensued, with the SAR repeating her insistence that the Persetujuan Waris must be in affidavit form.
I maintained my position in accordance with my client’s instructions, and Jan 6 was fixed for a decision.
On Jan 6, to my absolute surprise, the SAR granted order-in-terms, vindicating my position that there is nothing in law requiring the Persetujuan Waris to be in affidavit form.
After six court appearances, victory came, though I could not help feeling deeply frustrated by the needless length of the ordeal.
Were the SAR, and by extension the judge, unaware of the applicable law during the first five appearances, only to discover at the sixth that their position was legally untenable? What exactly transpired in that judicial reasoning?
As much as I would like to frame this as comedy, it is far from it. It is a travesty where the court, through apparently capricious posturing and in the absence of legal authority, imposed unnecessary hardship not only on the applicant but on every affected family member awaiting closure.
It would be unfair to suggest that such aberrations are the norm in the judiciary. They remain the exception, though worryingly, one that appears to be increasing in frequency, particularly in encounters with very young and visibly inexperienced SARs who view even respectful questioning of their directions as an affront to their authority.
This is unhelpful. Lawyers are officers of the court, tasked with respectfully assisting on questions of law. A healthy collaboration between Bench and Bar is essential and should never be misconstrued as an attempt to undermine the judiciary.
This brings me to my personal closure.
First, that improvements will come through better judicial training. The courts are, after all, the last bastion of public trust in the timely and competent dispensation of justice.
Second, and finally, I remain curious about what the judge truly meant by “it is there”. Perhaps revelation will come during lighter moments at a future Bar-Bench annual dinner – ideally in the company of the same SAR.
The views expressed here are the personal opinion of the writer and do not necessarily represent that of Twentytwo13.
