ISLAMIC WEALTH & LEGACY FORUM 2026

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A note to readers: these essays were written for a Malaysian legal readership, drawing on Malaysian civil and Syariah procedure. Readers less familiar with that framework may find the case narratives and the human stories behind them of particular interest.

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1. Revoking a Will / Wasiat

Section 14 of the Wills Act 1959 sets out only four ways to validly revoke a will or wasiat — and no reason for doing so is required at all, provided the testator intended it and was of sound mind.

Megat Shaharuddin Merican · Advocate & Solicitor[1]

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There may be situations whereby after the testator has executed his or her will/wasiat, he or she finds the need to revoke it.

The reasons for revocation can be numerous though inconsequential, thus my aim here is simply to explain how that can be done.

Indeed, a will/wasiat can be easily revoked, but must be carried out in accordance with the law.

That said, it is a relatively straightforward process, though not necessarily akin to the joyous experience of shredding incriminating evidence as allegedly done by the excellent team at 1MDB.

The four ways to revoke

Anyway, in the Malaysian context, revocation of a will/wasiat is strictly regulated by statute, specifically, Section 14 of the Wills Act 1959, which provides, inter alia, that any of the following options are to be taken before the same can legally take effect:

1. executing another will/wasiat; or

2. making a written declaration to that effect and witnessed in the same manner a will/wasiat is to be witnessed on execution; or

3. by the burning, tearing, or otherwise destroying (in totality) the will/wasiat by the testator; or

4. by some person in his presence and by his direction, with the intention of revoking the same.

To reiterate, doing any of the above will effectively revoke a will/wasiat.

However, it is important to be mindful again that you do not need to have a sound reason for doing so, or any reason for that matter, provided, at the time of revocation, you intended that revocation, and being mentally sound as measured by law, and not by your inadequately compensated ex.

And once revoked in accordance with the law, that should be the end of the matter, failing which, there can still be a legitimate presumption that the will/wasiat remains valid and subsisting.

A closing word

Finally, for lawyers instructed to draft and/or witness the execution of wills/wasiats, it would be helpful that testators are made aware of that right to revoke so that they may act accordingly should and when the need arises.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.

2. Real or Fake — How to Verify Court Documents

A rundown on how to spot fake court documents in the pre- and post-e-filing eras — and a hope that today’s children will not grow up to be the grumpy bureaucrats who frustrate the process at the front counter.

Megat Shaharuddin Merican · Advocate & Solicitor2

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We live in a world where documentation fraud, as with over-the-top marriage vows, are of real concern.

The question often asked is: how do you ascertain the genuineness for either?

In the context of a marriage, my educated guess would be, if just 12 months or thereabouts after the “I will love you and your mother to the ends of the Earth”, is followed by angry divorce papers, then that may be a good indication that the vows came from a Google search, and not directly from a person’s unjaded heart.

As for ascertaining the genuineness of documents, specifically court-approved documents, entailing inter alia, Judgments, Orders, Probates, Letters of Administration, Power of Attorneys, etc, we need to look at the pre-2011, and post-2011 periods.

Two eras of verification

In pre-2011, original court documents were affixed with the court’s official seals, and copies thereof would have had to have the court registrar’s certifications on the same, that they are indeed true copies of the originals, and duly signed with real ink pen as confirmations.

In post-2011, after the introduction of the “e-filing system” (EFS), court documents would either have serial numbers or both serial numbers and QR codes at the bottom left-hand corners.

Where the court document displays only the serial number, verification is done by keying the same (without its prefix of “S/N”) at the relevant government verification portal3.

That should then officially reproduce the court document in question and not the unended shopping list of your better half.

Alternatively, where the serial number and QR code are both made available, you can choose to scan the QR code instead with your mobile phone (the easier and preferred option).

By doing so, you would again be brought to a government site, and after keying a much simpler CAPTCHA code (generated by the site in question), instead of the mile-long serial number, the court document would be reproduced as before.

Straightforward, and simple.

In this regard, courts have done much to liaise with other government agencies (federal and state) to have documents under EFS accepted without the need to have copies of the same to be certified as true.

But here lies the problem, not all bureaucrats seem to understand that, and this can happen even within the same government agency.

Three kinds of registrars

From my personal experiences, the Selangor Land Office in Shah Alam, is one such example of that occasionally happening.

2This essay first appeared as "Real or fake – how to verify court documents", Twentytwo13, 10 August 2022:

https://twentytwo13.my/real-or-fake-how-to-verify-court-documents/

3The Judiciary's e-Court Services document verifier: https://ecourtservices.kehakiman.gov.my/Document/Verifier/

On the one hand, you have land office registrars accepting at face value and without more, court documents which display serial numbers and QR codes as authentic.

On the other hand, you have land office registrars who apparently did not get the latest memo, and still insist on the old style of pre-2011 verification methods, but oddly, for post-2011 documents under EFS.

And then there is this special third category of land office registrars, the crème-de la-crème of civil servants who insist that copies of court documents must be printed in colour, as those documents apparently derive their legitimacy through the vibrancy of such hues. Only in Malaysia.

Moving forward, I sincerely believe these are matters that can be easily resolved and ironed out between government agencies.

A closing word

On a personal level, and as part of long-term microplanning, my hopes are that parents who see their precocious five-year-olds displaying early signs of the love for bureaucracy — e.g. showing great interest in reading the National Land Code, stacking papers and pens neatly in a particular order but without any real purpose, etc — treat them with extra kindness, and hug them regularly, for the long-term ramifications are far-reaching in the years to come, especially if they are deprived of such nurturing love, and eventually, sitting grumpily at the front lines of that very bureaucracy in their adulthood.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.

3. A Love for Death Certificates

A death certificate is not the only proof of death Malaysian law recognises — a Grant of Probate or Letters of Administration says so just as officially. Try telling that to a bank.

Megat Shaharuddin Merican · Advocate & Solicitor4

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Contrary to popular belief, only the death certificate issued by the Registrar General of Births & Deaths Malaysia, and not the hearsay from your mother-in-law that you have met your Maker, can be the official confirmation of your demise, if and when that happens.

That said, the High Court is equally a competent arm of government that has legal authority to reconfirm that someone has indeed died, and this can basically arise in 2 situations.

Those situations are, either when the High Court is presented to hear the application for Grant of Probate (Probate), where someone dies leaving a will, or the application for Grant of Letters of Administration (LA), where someone dies without a will.

In both instances, the High Court registrar will only issue either the Probate, or LA (as the case may be) when, inter alia, he or she has had sight of the original death certificate, or some other irrefutable evidence that the deceased has died.

Without such document or evidence, no Probate or LA can be issued.

It must also be remembered that the Probate or LA is more than just officially reconfirming the deceased’s death, they are more importantly, the principal documents which promulgate the Executor (in the Probate), and the Administrator (in the LA) with authority over the deceased’s entire estate (debts and assets).

What a Probate or LA confirms

In that regard, any person furnished with either document is legally compelled to give due recognition to same which would contain the following key information:

1. the High Court suit number and date of issuance;

2. the deceased’s full name;

3. the deceased’s identity card registration number;

4. the deceased’s date of death;

5. the full details of the Executor or the Administrator (as the case may be).

Land registries get it. Others don’t.

Here, the land registries throughout Malaysia without any exception must be lauded for truly understanding the legal purport of what a Probate or LA entails.

In my 25 years of practice, they have never demanded beyond the Probate or LA as confirmation of the deceased’s death.

Unfortunately, not all take that position.

From my experience, banks, Lembaga Tabung Haji, the Employees Provident Fund are some of those who remain steadfast for the desire to have a death certificate as the only proof for same.

4This essay first appeared as "Addressing banks' undying love for death certificates", Twentytwo13, 17 August 2022: https://twentytwo13.my/addressing-banks-undying-love-for-death-certificates/

No amount of explanation on my part could convince otherwise.

One local bank went one step further and required a copy of the deceased’s burial permit.

The burial permit

That happened to me in 2016, when I attempted to cancel my late wife’s credit card just after her tragic death due to cancer.

The said bank insisted not only for a copy of her death certificate (as expected), but also demanded for a copy of her burial permit before proceeding to cancel her credit card.

In grief and pain, I could only fume at that juncture over what I believe to be an insanely ridiculous demand without an iota of intelligence.

Years later, and after being happily remarried with stepchildren, I can now rationalise how and why such a demand came into being.

An imagined meeting

As an epilogue to this piece, I reproduce below what I believe to be the unsubstantiated minutes which took place at that very bank special committee meeting, set up to decide why a burial permit is required for proof of death:

Chairperson:	How we confirm someone died?
Inhouse legal adviser:	Death certificate.
Bank’s Intellect of the day:	Must also get deceased’s burial permit.
Bank’s inhouse beautician:	(not exactly sure why she was summoned to the meeting, decided to remain silent and not making eye contact with anyone for fear of being asked over matters outside the scope of latest hair and skin care products).
Chairperson:	Why “burial permit”?
Bank’s Intellect of the day:	Boss, from mortuary to grave, someone still can use deceased’s thumbprint for online banking. Make sure bury properly.
Chairperson:	Sure one?
Bank’s Intellect of the day:	Got one boss.
Chairperson:	OK then, get death certificate and burial permit.
Inhouse legal adviser:	(Quietly going along with preposterous idea as not to jeopardise good relations with Chairperson and impending bonus)
Bank’s inhouse beautician:	(still not making eye contact with anyone)

A closing word

Jokes aside, my hopes are simply this — when implementing anything affecting anyone, put some considerate thought into it, and not cause unnecessary hardship to all and sundry, and where Probates and LAs are concerned, it would be most helpful if parties could simply accept them as official reconfirmations of death, without having the need to demand for the actual death certificate as well.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.

4. Have the Shah Alam Civil High Court Registrars Gone Rogue?

When a Registrar’s office starts demanding a Grant of Letters of Administration before it will accept a straightforward probate application — even where a named, willing executor stands ready — that isn’t caution. That’s overreach.

Megat Shaharuddin Merican · Advocate & Solicitor5

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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.

A statutory list, not a matter of taste

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.

Whose authority, exactly?

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 269 where he states:

5This essay first appeared as "4. Have the Shah Alam Civil High Court Registrars Gone Rogue?", Twentytwo13, 9 May 2023: https://twentytwo13.my/opinion/have-the-shah-alam-civil-high-court-registrars-gone-rogue/

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 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 Section 2(2) problem, again

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 Act 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.

One statute, one process, across Peninsular Malaysia

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, 2023 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.

Syariah Court’s role — and its limits

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.

A closing word

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.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.

Much Ado About Taxing the Deceased’s Next-of-Kin

When a Deputy Finance Minister and the IRB’s CEO said next-of-kin can be made to pay a deceased taxpayer’s arrears, and two state muftis publicly disagreed, a straightforward reading of Section 74 of the Income Tax Act 1967 says both sides missed the actual statute.

Megat Shaharuddin Merican · Advocate & Solicitor6

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One of the ways in which the Federal Government raises revenue is by taxing income, and that is done through the Inland Revenue Board of Malaysia (IRB).

Towards that end, the Federal Parliament passed the Income Tax Act 1967 [Act 53] which provides the mechanics on how IRB is to carry out its role.

Act 53 is not exactly a mastery embodiment of the English language, enthralling its readers with drama, suspense, the agony over unrequited love, and of honourable closure. It is after all, as with any other legislation passed, a dreary read, evidence that the assigned drafters were equally miserable when they were tasked with its promulgation.

It is however not rocket-science, and Act 53 is relatively straightforward with its linguistic aims, though I believe it could have been better drafted.

A bureaucratic fracas

My concern however is not over the quality of statutory drafting, but on the recent report carried by Bernama dated 19 May 2023 over comments attributed to the Deputy Finance Minister, Datuk Seri Ahmad Maslan, as follows7:

The government does not want to amend the Income Tax Act which stipulates that the administrator or next-of-kin of a deceased income taxpayer has to pay the tax arrears.

Embedded in that report is the expected and unequivocal loyal support given by IRB’s very own Chief Executive Officer (CEO), Datuk Dr. Mohd Nizom Sairi, who is clearly in unison with the Honourable Minister.

Such remarks apparently came in the wake of the very public differences of opinions between 2 muftis regarding same.

On the one hand, you have the Penang Mufti, Datuk Seri Dr. Wan Salim Wan Mohd Noor, who brought forth and aligned himself with the Honourable Minister and CEO as to the aforesaid.

On the other, you have the Mufti of Pahang, Datuk Seri Dr. Abdul Rahman Osman, who opined otherwise, that the next-of-kin, should not be made liable for the income tax arrears owing by the deceased to IRB8.

Subsequent to the 2 sides of that divide, you have into the fray, the Muzakarah Committee of the National Council for Islamic Religious Affairs (MKI), a federal entity headed by the Honourable Datuk Dr. Mohd Na’im Mokhtar (from the Prime Minister’s Department), endeavouring that MKI will deliberate on the issue in due course, to decide one way or the other, whether from a

6This essay first appeared as "Was deputy finance minister, IRB boss right about next-of-kin having to pay tax arrears?", Twentytwo13, 24 May 2023: https://twentytwo13.my/was-deputy-finance-minister-irb-boss-right-about-next-of-kinhaving-to-pay-tax-arrears/

7Bernama, 19 May 2023: https://bernama.com/en/general/news.php?id=2190574

8Bernama, 2023: https://www.bernama.com/en/region/news.php?id=2189824

theological perspective and in the backdrop of Act 53, a next-of-kin should be made liable for the deceased’s income tax arrears.

My 2 cents worth

Now before I give my 2 cents worth about this whole bureaucratic fracas, a caveat from my end is necessary as a matter of transparency.

I am not a tax lawyer in spite having studied basic Taxation Law in Australia circa 1995. On that and just to digress, I do observe that all my colleagues who specialise in that field are unquestionably the crème de la crème of their class, the Tom Cruises of the legal profession so to speak but without the exuberance of Scientology. They are truly worth their salt, and I hope if circumstances permit, they will weigh in with their views.

That said, I am still blessed and endowed with the fact that I am not only able to read and string 2 sentences together without collapsing, I do take seriously upon myself to actually read and be familiar with all relevant materials pertaining to the area of my work, principally, on matters legally affecting the dead, and by extension, that which also affects his or her heirs, hence my interest herein.

So here is my 2 cents worth — if you were to read Act 53 from the beginning to the end, whilst probably suffering from bouts of mental paralysis in between, you will NOT find anywhere in same which states that a next-of-kin shall be legally responsible for the deceased’s income tax arrears.

If anything, you will find Act 53 stating that the “executor” (for the deceased’s estate), and in that same light, his or her administrator, shall be responsible for the deceased’s income tax arrears [Section 74(1) of Act 53] though went on to qualify in no uncertain terms that that debt remains, a debt attached solely to the deceased’s personal estate (by correct statutory presumption), and to no other [reference to Section 74(4)].

So as far as I am concerned, this whole affair as reported is absolutely bizarre and unnecessary causing in turn undue worry to the general public who are already swamped with the need to spend precious hours at reviewing every single TikTok shared to them on social media.

I do believe had the Honourable Minister and CEO of IRB actually took upon themselves to be familiar with Act 53, they would not have made those statements. Whatever happened to the advisors for the two? Surely persons in that tier of administration would have been aided by troops of intellectuals unless of course those aids were momentarily unreachable, being preoccupied still with the tail end of Hari Raya celebrations.

A federal purview

In any event, it must be remembered that taxation is a federal purview, to be consistently applied throughout Malaysia, and by virtue of Article 75 of the Federal Constitution, must take precedence over any state law, in the event of inconsistencies between the two.

In that context, whatever views espoused by state muftis or state legislatures for that matter, whether in contradiction of, or even in support of Act 53, would be purely academic and inconsequential, and cannot affect the standing of same either way unless so amended by the Federal Parliament to incorporate those views.

Invariably, the problem here is not the contents of Act 53 which main fault is its dreariness, but the apparent abject failure by parties pitching the revolutionary pitchforks in clueless protest and pronouncements without reading the relevant contents therein, resulting therefrom, the issuance of statements and giving opinions which are just incorrect and unnecessary, and getting everyone into an exasperated bind.

A closing word

As closure to this piece, I would like to make an open wager.

If my thesis here is proven wrong, I will gladly sever my brother-in-law’s entire left ear. He does not appear to be needing it and I, very much would like to have all my body parts intact.

On the other hand, if I am proven correct, I would be merely content with the satisfaction of belief in self.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.

6. Declaration of Trust — An Understanding in Crisis?

Seven months, three courts, and a settled principle of trust law — that trust property does not fall into a deceased trustee’s personal estate — tested from the ground up.

Megat Shaharuddin Merican · Advocate & Solicitor9

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The title at hand is framed with deliberate intent and conscious desire to invoke discourse specifically amongst the legal fraternity over a relatively fundamental and settled principle of law, collated from a series of cases as follows:

Trust property held by a trustee cannot devolve to form part of the trustee’s personal estate upon his or her death but must remain for the sole benefit of the named beneficiary/beneficiaries under the trust, and this principle equally applies to Muslims and non-Muslims alike.

As simple as that principle may be, my personal experience suggests that the court may still be grappling with that, in instances, where it egregiously treats trust property as forming part of the trustee’s personal estate on account of the trustee’s death, instead of remaining for the benefit of the named beneficiary or beneficiaries.

This paper is therefore aimed at sharing the writer’s personal anguish regarding the aforesaid, commencing at the Kuala Lumpur High Court, followed by an appeal to the Court of Appeal, and back to the High Court again (in a time frame of slightly over 7 months) just for a non-contested Vesting Order application arising from an uncomplicated declaration of trust.

The narration as follows thus pertains to the aforementioned and I do apologise for its length which I believe is nevertheless necessary to appreciate where that anguish is coming from.

It is also an opportunity to showcase how verbose some lawyers (like myself) can be, given any opportunity to write, manifested usually through their insatiable appetite for extensive word count, pedantry over linguistic structure, and proclamation to all and sundry of their intimate relationship with a dictionary.

Setting the scene

So, on 20 June 2008, my client (Trustee), executed a Declaration of Trust (DT), declaring that she holds a condominium unit in Kuala Lumpur (registered in her name) (Property) on trust for the benefit of her niece (2nd Client), and two adopted children (in equal shares).

On 8 February 2023, Trustee died intestate (without a will).

On 23 March 2023, the two adopted children respectively affirmed a statutory declaration each, agreeing that the Property be vested solely in the 2nd Client subject to the proceeds from the eventual sale thereof, to be equally divided amongst the three.

On 27 March 2023, as instructed by 2nd Client, I filed an ex parte application (1st OS) for a Vesting Order, principally seeking, that the Property be transferred (daftar) to her.

On 29 May 2023, I appeared before a High Court judge for that application.

Five questions, and a dismissal

In brief, he dismissed it, but raised the following before making that joyful pronouncement (summarised from the court transcripts):

9This essay first appeared as "Declaration of trust – an understanding in crisis?", Twentytwo13, 7 February 2024: https://twentytwo13.my/declaration-of-trust-an-understanding-in-crisis/

1. Seeking to establish why no Faraid certificate was made available (in the proceedings) in light that the Trustee is a Muslim, suggesting in turn, that the Property, upon the Trustee’s death, now forms part of the Trustee’s personal estate, thereby giving avenue to any of the Trustee’s heirs to make a claim over same.

2. Seeking to understand why the words “inter vivos” were not stated in the DT, in view that the Trustee made that declaration in her lifetime.

3. Demanding to know why the word “hibah” or “gift” not used to convey the intention of the Trustee (in the DT).

4. Querying as to why a Grant of Letters of Administration (LA), not applied first (to administer the Trustee’s estate), before the 1st OS was filed.

5. Wishing to ascertain whether the Trustee’s had heirs (if any).

It became apparent that the judge predicated those queries through his belief that the Property (as stated) forms part of the Trustee’s personal estate as it was NOT transferred to the intended beneficiary in the Trustee’s lifetime.

More importantly and somewhat bizarrely, it became equally apparent that the judge went off on a different legal trajectory altogether when he refused to recognise and uphold the concept of trust (as generally understood) simply because the Trustee was a Muslim, presupposing in turn, that a different set of laws were to apply under the circumstances.

In reaching that, the judge’s pronouncement became at odds with established laws pertaining to, and governing trust assets as understood within the Malaysian legal framework which was not necessarily antithetical to Islamic precepts.

However much I tried, I could not persuade him on the legal merits of the application before him, and his refusal to take heed of the applicable principles from a reported Court of Appeal decision — TM Feroze Khan & Ors v Meera Hussain TM Mohamed Mydin [2006] 1 CLJ SYA 250, [2006] 3 CLJ 616 — which was not only favourable to the 1st OS, but also one which he was bound to follow under the doctrine of stare decisis[2] , left me perplexed and disoriented.

As much as I wanted to argue further, I refrained, after seeing that the judge was already aggrieved by the courtroom’s insipid surroundings, and to press on (at that juncture), would have been counterproductive and angered him even more, hence the recourse to a higher judicial authority (after the 1st OS was dismissed, and without any official reason given).

To the Court of Appeal

Subsequent thereto, on 2 November 2023, after the lapse of over 5 months from the hearing of the 1st OS, and the failure (after several written requests) to get the High Court judge to write a judgment explaining as to why he rejected the application, the appeal proper was finally heard before a three-judge Court of Appeal panel (by way of ZOOM hearing).

As I was not entirely familiar with the procedural aspects for appeals, I roped in the help of a legal colleague, Nizam Bashir (NB), a person whom I have known for over 29 years since studying law together in Australia (in the early 1990s), and who so happens to be a very seasoned and able litigator, and with an enviable set of natural hair which would occasionally become a source of my contempt for him.

NB literally took over the conduct of the case, and henceforth, was solely responsible for the oral submission at the Court of Appeal.

The following were the salient points discussed, and addressed by the three-judge panel (summarised from the court transcripts):

I. The appeal was dismissed not because it lacks merit but because the 1st OS failed to invoke Section 48(e) of the Trustee Act 1949 in its intitulement (the heading of the 1st OS).

II. Section 48(e) is essentially the authority which gives power to any named beneficiary to seek a Vesting Order (in situations where no Administrator/Executor is available to represent the deceased Trustee’s estate).

III. The fact that the words “Vesting Order” were already stated in the intitulement of the 1st OS made no difference whatsoever to the findings of the three-judge panel which insisted that Section 48(e) must be specifically invoked for the 1st OS to succeed.

IV. We were then directed to file a fresh ex parte Vesting Order application (2nd OS) at the High Court, together with the requisite amendments.

V. We were also directed to retain references to Sections 417 and 420 of the National Land Code 2020 as per the intitulement in the 1st OS (federal legislative provisions which require the relevant land registry to act upon the Vesting Order when served with a copy).

VI. The prayer (body) of the 2nd OS should state, inter alia, the following:

(a) The trust property (in the prescribed portion given) must first be vested (diletakhak) in the name of the applicant/beneficiary.

(b) Subsequent thereto, the relevant land registry upon being served with a copy of the Vesting Order, to then register (mendaftar) the name of the applicant/beneficiary on the issue document of title to the Property.

VII. The three-judge panel unanimously and unequivocally added that NO Faraid certificate is required for the vesting exercise, thereby ruling out (by implication) that trust property falls into a Trustee’s personal estate upon her death.

VIII. As the Court of Appeal did not at all canvas the issues as raised by the High Court judge (save for the question of the Faraid certificate), it can safely be stated that they were not material nor relevant.

IX. Finally, the three-judge panel directed that when we do file the 2nd OS, we are to formally allude their findings (as aforesaid) to the High Court below which can then act accordingly by granting the Vesting Order without more (when the matter goes for hearing).

Back to the High Court — again

On 3 November 2023, NB (through his firm), filed the 2nd OS at the Kuala Lumpur High Court, together with a certificate of urgency for the purpose of expediting the hearing process.

On 8 November 2023, the 2nd OS was heard before a Senior Assistant Registrar (SAR).

Pursuant to the assurances and comfort officially given by the Court of Appeal, it was natural for NB and I to assume that the High Court would then, as a matter of recourse, grant the Vesting Order without much fanfare and celebration.

Disappointingly, our confetti moment was not meant to be, and once again, we were both drawn into another route of exasperating chicanes.

The SAR directed 2nd Client to firstly obtain a LA towards administering the Trustee’s estate before proceeding with the Vesting Order application.

NB respectfully replied that we could not accede to the SAR’s direction as it was not only contrary to the clarity of Section 48(e), it also openly countermanded the direction from the Court of Appeal.

NB added that should she insist, he was quite happy for her to dismiss the 2nd OS and thereafter, for us to go through the appeal process once again.

Regrettably at that point, the Court of Appeal transcripts were not yet made available to assist us, and as such, we could not definitively convince the SAR of the material substance thereof which could have allowed a mere formality of a hearing in granting that order-in-terms sought.

That said, it is important to be mindful that it would have been criminally insane for NB and I to deceive the SAR over what the Court of Appeal had averred.

Such conduct would definitely get us disbarred and with our respective legal careers ending on a most disgraceful note where being incarcerated thereafter in a joint cell at one of His Majesty’s fine prisons for some quiet and reflective time is an outcome waiting to happen.

Anyhow, after temporarily standing down the matter, the SAR then came back and fixed another date of 17 November 2023, essentially to hear further submissions (from NB) on the legal reach of Section 48(e), and as to why we should not comply with her direction on the need to file the LA first, before proceeding with the Vesting Order application.

Eventually, on 17 November 2023, NB and I appeared once again before the same SAR.

This time, the Court of Appeal transcripts were made available in the records of proceedings.

The written judgment by the High Court judge (in the 1st OS) was also made available though NB did not feel it was necessary that it be filed in the records of proceedings in light of the Court of Appeal transcripts which would have superseded whatever ruling in the former.

To our disappointment, the SAR did not even wish to hear NB submit but fixed another date of 16 January 2024 for the purpose of bringing the 2nd OS to be heard before a High Court judge.

I could not help but wonder then as to why such a basic principle of trust appears seemingly difficult to comprehend and disposed with, hence my belief that this area of law is indeed in crisis.

Victory, at last

Thankfully, on 16 January 2024, NB and I finally had our day, and victory.

There, a different High Court judge, upon thorough examination of all documents filed, the tackling of a series of elaborate questions posed (and answered) and taking cognisance of the position of the Court of Appeal (on the matter at hand), invariably granted the Vesting Order.

Arising therefrom, the High Court judge implicitly reaffirmed the long-established principles as follows:

1. trust property cannot devolve to form part of the trustee’s personal estate on account of the trustee’s death BUT must remain for the benefit of the beneficiary;

2. the fact that the trustee is a Muslim, made no difference to the legal standing of the trust which remains valid and enforceable regardless of the death of the trustee; and

3. there is no legal requirement for trust property to be transferred to the beneficiary in the trustee’s lifetime for the trust to remain valid and enforceable — thus in consonance with the statutory position of Section 344 of the National Land Code.

A closing word

Without doubt, though NB and I felt elated over our success, there is still that genuine concern that what we went through could happen again if there remains an inconsistency of application on the notion of trust as discussed here.

It is therefore my hope that someone with leverage within the judicial corridors may chance upon this piece and take note and perhaps facilitate pre-emptive measures by way of better education and training to enable those tasked at presiding over such a legal issue (or any legal issue for that matter), will be well versed on the applicable law, preventing in turn wrongful directions and judgements from ever taking shape and form.

The courts after all should be seen as the bastion of consistency and uniformity for legal redress (in a timely manner), not as an adjudicative impetus for the rigmarole of procedural uncertainties, where justice delayed, will invariably mean, justice denied.

Whether what I propose here will take place or not, I can only pray for obvious reasons, that providence will spare me from ever having to appear again before the same High Court judge who rejected the 1st OS for I have no doubt if that were to happen, it will not be the courtroom’s insipid surroundings that will be the source of his wrath and pain.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.

7. The Stamp Act 1949 [Act 378], a Must Read

Two ordinary documents — a Declaration of Trust and a Power of Attorney — recast by some Collector of Stamp Duty departments as property transfers, at ad valorem rates the statute was never written to charge.

Megat Shaharuddin Merican · Advocate & Solicitor11

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If you are looking for something riveting to read, know that Act 378 is the antithesis to all that is joyful.

Chances are the instructions pamphlet that came with the blender gifted to your wife would be more thrilling.

That said, Act 378 is a federal legislation every affected person should be acquainted with.

It provides clear guidelines and calculation methods of how the Collector of Stamp Duty (CSD) charges for documents needed to be stamped.

That information would be extremely useful to know for purposes of detecting discrepancies committed by the CSD, if and when that happens.

Believe me it does, especially when CSD officers decide that they will ignore clear statutory provisions in Act 378 and simply take advice from the many voices within themselves which is probably hinged on the need to meet certain key performance index before the end of the year bonus can be given.

Anyway, in regard to that statutory provision, it is important to be familiar with the First Schedule of Act 378, which basically provides the complete list of what documents can be stamped, and for how much.

It is not my aim here to go through the complete list, but to illustrate just 2 examples.

Two examples, one fixed rate

Now a Declaration of Trust (DT), which comes under item 37 of the First Schedule, and a Power of Attorney (PA), which comes under item 59 of same, attract a RM10/- stamp duty each and that has always been the position since I joined legal practice in 1997.

This I believe to be the correct application of the law as it strictly follows the literal wordings of the First Schedule.

However, of late, some CSD departments across varying states have treated a DT and a PA as transfers of immoveable properties (transfers) therefore to be levied with costly ad valorem stamp duty each as per item 32 of the First Schedule.

This is egregious for 2 reasons.

Two reasons this is wrong

The 1st reason rests on the fact that the method for calculating stamp duty should be uniformly applied and not dependent on which CSD department you go to, or more specifically, which CSD

11This essay first appeared as "Scrutinising stamp duty charges in Malaysia's Stamp Act", Twentytwo13, 3 February 2025: https://twentytwo13.my/scrutinising-stamp-duty-charges-in-malaysias-stamp-act/ officer is assigned to process the adjudication, as stamping of documents is exclusively a federal purview governed by very clear statutory guidelines (as mentioned), and not a state prerogative nor by the dictates of the inner voices often vexing the corridors at CSD.

As for the 2nd reason, transfers (of immoveable assets) can only be legally effected by using Form 14A, a statutory prescribed form provided for under Sections 215 and 217 of the National Land Code 2020 [Act 828].

Thus, in so far as transfers are concerned, Act 378 must not be read in isolation but in consonance with Act 828.

In that same light, a DT and a PA are not instruments of transfer as recognised under Act 828 and therefore must not be treated as such.

A closing word

This wave of arbitrary interpretation and application by the CSD pertaining to the First Schedule has perpetuated a running joke among lawyers, that in the aftermath of the financially crippling 1MDB scandal, the Malaysian government had no choice but to become creative in the need to raise revenue, and in that, tacitly authorise their federal collection agency to treat most, if not all documents required to be stamped, as transfers.

On a serious note, this bureaucratic farce is perhaps one of the reasons how and why governments get overthrown at general elections — the enraged public outcry and frustrations against the incessance of federally sanctioned hardships which stem not from law or sound judgement but caprice.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.

8. Dilemma over the Filing of CKHT Forms under Conditional Contracts

Where a High Court Order is required before a deceased’s immoveable asset can even be legally disposed of, the Inland Revenue Board still insists — by refusing to recognise the courts as part of “government” — that CKHT forms must be filed within 60 days of signing, not of approval.

Megat Shaharuddin Merican · Advocate & Solicitor12

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This piece centres on the timing to file the real property gains tax forms (CKHT forms) over the disposal/acquisition of immovable assets (eg houses, lands, etc) arising from conditional contracts.

Now under the Real Property Gains Tax Act 1976 (Act 169), parties to the disposal/acquisition of immoveable assets are required to inform the Inland Revenue Board (IRB) when doing so, and by submitting the prescribed CKHT forms (now via online).

Ordinarily, that must be done within 60 days from the date of disposal/acquisition, as per Section 13, failing which, the IRB can and may seek much temporal joy in fining and/or incarcerating the offending party (Section 29).

However, Section 16, Schedule 2, Act 169, provides the exception to Section 13, in so far as the timing to file the CKHT forms are concerned.

In the event disposal/acquisition is conditional upon government approval, the timing to file the CKHT forms is within 60 days from the approval date.

As to the meaning of “government” under Section 16, my dealings with the IRB observe that it restricts that to mean, the Federal Government, State Governments, and any other duly authorised body acting thereunder.

The IRB’s dilemma

Oddly, the IRB does not recognise the Court as part of government, and here lies the dilemma, more precisely, in the context of disposing/acquiring immoveable assets arising from intestacy (dying without a will). In practice, this exercise would usually be initiated through contract (eg, a sale and purchase agreement).

Section 60(4)(a) of the Probate & Administration Act 1959 however states that no disposal of any immoveable asset arising from intestacy can take place unless a High Court Order (Order) is first obtained.

Thus, if relevant parties cannot procure the Order, the disposal cannot legally take effect, but by the demands of the IRB (which does not recognise the Court as part of government under Act 169), you would still have had to file the CKHT forms within 60 days from the date the contract was signed, clearly a senseless endeavour as there is no disposal vis-à-vis Section 60(4)(a) definition, but then again, we are dealing with a federal entity which thrives on vacuity, and the insatiable appetite for paperwork.

12This essay first appeared as "Dilemma over filing of real property gains tax forms under conditional contracts", Twentytwo13, 11 February 2025: https://twentytwo13.my/dilemma-over-filing-of-real-property-gains-tax-forms-underconditional-contracts/

Three branches, and a fourth in denial

From that standpoint, it is evident that the IRB does not place great emphasis on accredited research, for if that were so, it would have easily discovered that there are 3 branches of government — the Executive, the Legislature (Parliament), and the Judiciary (comprising the Courts), all of which are creations under the Federal Constitution (Article 39, Article 44, and Article 121, respectively) — the principal law which Malaysia was founded on.

In contrast, the IRB is a subordinate creature of Parliament (created pursuant to the Inland Revenue Board of Malaysia Act 1995), and by implication, subordinate to those 3 organs of government, though not that that fact bothers them in the least — a symptom perhaps of one being afflicted with the Malay proverb of “kachang lupa kulit” (ie, one who forgets its place).

Indeed, much material has been written on what constitutes the organs of government though clearly, none has made its way to the IRB reading list (if there is such a list at all in the first place). And from the capacious literature in this regard, possibly the most authoritative and relevant can be found in the unanimous decision of the Federal Court in the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Anor [2017] 3 MLJ 561, which inter alia, affirmed the following [at paragraph 70]:

“The courts ...... form the third branch of the government ......”

A closing word

From my end, I have had many written exchanges on this very issue with the IRB, as far back as 2016, including corresponding directly with its then Director General, but they all remain adamant that the Court is not a branch of government (under Act 169 definition), compelling me to conclude that if you want a great career in the service of the nation which offers much benefit, including a secure pension but without the drawbacks of having to read anything on the job save for the lyrics to Negaraku, this federal body may truly be the pinnacle of bureaucracy — the dream public sector employment for those whose single goal is to have cerebral apathy at its finest.

Invariably, I have now resigned to the fact that where the IRB is concerned, buying a bottle of chloroform, and using it on myself as therapy, would be far better than having to psychoanalyse the thought process of those working in same, especially from the ranks of its crème de la crème of officers who find a sense of fulfilment simply by abandoning any desire to think.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.

9. Uncontested Probate Applications and the Effect of Order 71, Rule 9(1), Rules of Court 2012

An explainer on what a probate application entails in an uncontested estate matter, and how Order 71, Rule 9(1) of the Rules of Court 2012 operates — including the limits of a registrar’s power to demand an affidavit as to due execution where a valid attestation clause already exists.

Megat Shaharuddin Merican · Advocate & Solicitor13

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This article aims to firstly explain what a probate application is within the settings of an uncontested estate matter, and secondly, how Order 71, Rule 9(1), Rules of Court 2012 [previously Order 71, Rule 9(1), Rules of Court 1980] comes into effect in relation thereto.

In its simplest definition, a probate application is about bringing a will to proof before the Civil High Court as mandated by the Federal Constitution, at least in Peninsular Malaysia. That would entail determining whether a will was duly executed in accordance with law — not, for instance, by the insistence of “Lola”, the overweight courtesan who may have delivered that final asphyxiating deathblow to the deceased testator during his last happy union with her.

Principally, if no one is challenging the will — not even from “Lola” — and it meets with the statutory formalities as laid out in the Wills Act 1959 (Act 346), there must then be a presumption, albeit a rebuttable one, that the will was duly executed, and that the testator had the intention and the testamentary capacity to execute same. Henceforth, probate should be granted in favour of the applicant, subject however to compliance of Order 71, Rule 9(1), if applicable.

In practice, this whole process can take place before a High Court registrar at the very first hearing of an ex parte probate application (with only the applicant as party), where the original will is surrendered into the High Court’s custody. Thereafter, the registrar is tasked to independently examine whether the same was duly executed within the criteria set by Act 346.

It is important to emphasise here that, contrary to some beliefs within the legal fraternity that the statutory formalities under Act 346 (outlined below) apply only to non-Muslim wills, they do, in fact, extend to Muslim wills as well — a conclusion reasonably drawn from the decision of Syed Othman J in Amanullah bin Haji Ali Hasan v Hajjah Jamilah binti Sheik Madar [1975] 1 MLJ 30:

• the will is in writing;

• the will is signed at the foot or end thereof by an adult who has reached the age of majority; and

• the execution of the will is in the presence of two or more witnesses present at the same time.

Within those parameters, it would not be the High Court’s role to precipitously embark on a judicial frolic to assess the fairness of the will — a finding by Choo Kah Sing JCA in Teoh Ying Rin v Savatery Jayaraman [2025] 5 CLJ 92.

Thus, questions on the manner of distribution which may not necessarily be agreeable to the testator’s heirs (upon his or her death), or how to deal with the testator’s posthumous revelation of his surreptitious lifestyle insouciantly spelt out under the miscellaneous sub-heading in the will, are, for all intents and purposes, completely irrelevant at this stage of proof.

In fact, a mere dispute (on distribution) does not invalidate the will nor render the probate application contentious.

13This essay first appeared as "9. Uncontested Probate Applications and the Effect of Order 71, Rule 9(1), Rules of Court 2012",

Twentytwo13, 12 June 2025: https://twentytwo13.my/uncontested-probate-applications-and-the-effect-of-order-71-rule91-rules-of-court-2012/

Suffice to say within the limited scope of this paper, any successful challenge by the testator’s heirs pertaining to the manner of distribution does not necessarily mean that the High Court is suddenly compelled to reverse the finding that the will was duly executed (if indeed that was the case).

An example of how that can occur is where a Muslim testator stipulates for equal distribution for his sons and daughters in the will, in clear contradiction to the fixed fractional portion accorded between male and female heirs as per the principles of Faraid (laws governing estate distribution as enunciated in the Holy Quran).

Under such circumstances, the will would still be deemed validly executed. Only the distribution under it may need to be varied so as to comply with the principles of Faraid — unless the deceased’s heirs agree to an equal distribution after his or her death.

The attestation clause

Upon clearance of that first legal hurdle, there remains another which is incumbent for the High Court to address as part of that proof process — whether there is an attestation clause in the will.

If there is one, the registrar should, as a matter of formality, simply grant probate. If there is none, the registrar shall, as a precondition before agreeing to grant probate, direct the filing of affidavits as to due execution of will by one, or by all the witnesses.

In light of the importance of an attestation clause (in the context of a will), an explanation is necessary. Unfortunately, neither statute nor case law provides for a precise definition of what an attestation clause is, but essentially, the clause should attest to the fact that when the testator signed the will, it was done so not only with the formalities observed, but in the presence of at least two witnesses, and to the fact that the testator was of sound mind when he or she signed the same.

Attesting to the fact that the testator was a handsome man will not do — unless that is in addition to the aforesaid.

For the benefit of everyone, I reproduce below an attestation clause I use regularly:

We hereby certify that the foregoing instrument was on the date thereof, signed, published, and declared by the Testator, [name of testator] (identity card number of testator) as for his/her last will and testament, in our presence, who at his/her request and in his/her presence, and in the presence of each other, have hereunto subscribed our names as witnesses thereto, believing the said testator at the time of so signing to be of sound mind and memory.

If the aforesaid attestation clause is present, probate should be granted without more. However, as explained before, if there is none, then an affidavit as to due execution is to be filed before probate can be granted.

That is the crux of Order 71, Rule 9(1), reproduced below in paragraphs to allow for easy reading:

Where a will —

• contains no attestation clause; or

• the attestation clause is insufficient; or

• where it appears to the registrar that there is some doubt about the due execution of the will,

he shall, before admitting it to proof, require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present at the time the will was executed.

Order 71, Rule 9(1) in practice

Regrettably, registrars have on occasions directed the filing of affidavit as to due execution in spite of there being a valid attestation clause, claiming they have absolute power to direct so regardless.

On Aug 17, 2011, I had the opportunity to test my understanding that Order 71, Rule 9(1) is not unqualified in nature, but must operate within limits.

On that date, I had the privilege to appear before the honourable Dr Prasad Sandosham Abraham (as he was then known), the High Court judge at Kuala Lumpur over my appeal in chambers against the direction of a senior assistant registrar who insisted — in spite of there being an attestation clause which he did not dispute — on the filing of such affidavits.

My written submission depended solely on a single authority invoking the words of Roberts CJ of the High Court of Brunei as follows:

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.

— Emran bin Junaidi & Anor v Hj Abu Bakar bin Hj Munaf & Ors [1997] 4 MLJ 269.

To my relief, the judge agreed that Order 71, Rule 9(1) is not absolute in power. As the will contained an attestation clause which the senior assistant registrar did not dispute, he could not thereafter arbitrarily direct the filing of the affidavit as to due execution, and accordingly, probate was granted in my client’s favour.

A closing word

All that said, I would be remiss if I did not take this opportunity to acknowledge the senior assistant registrar who presided over the petition for probate in question (as the process was then called).

The learned Ahmad Nazneen Zulkifi was an exceptional senior assistant registrar in character. It became apparent to me during our exchanges that his direction was not based on his need to pompously flex his judicial powers but one founded on a genuine and sincere belief (albeit incorrectly) that, based on his reading of Order 71, Rule 9(1), his powers under same are without constraints.

Even after he was corrected by the judge, he was always pleasant and professional and never took matters personally.

When I found out that he was later “transferred” to the Attorney-General’s Chambers, I could not help but feel a sense of relative loss.

Truth be told, I have never found any joy whatsoever in going to court even after 28 years in practice, and only do so out of necessity of work. When that happens, meeting a senior assistant registrar like Ahmad Nazneen truly makes for a worthy experience.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.

10. Much Ado About Persetujuan Waris / Heirs Agreement

Six court appearances, one straightforward vesting order, and a Senior Assistant Registrar’s insistence — with no traceable legal basis — that a Heirs Agreement by Statutory Declaration must instead be sworn as an Affidavit.

Megat Shaharuddin Merican · Advocate & Solicitor14

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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, but still, I would like to invite the general public to have a glimpse into the occasional circuitous drama that can sometimes needlessly unfold at the Civil High Courts, and this is one such tale — thus purposefully written akin to a comedy skit than a worthy article destined for a legal journal.

This parody began on 14 October 2025 (at the Kuala Lumpur Civil High Court), entailing a simple ex parte application for a vesting order by the administrator to a deceased’s estate arising from Islamic intestacy (Muslim dying without a will) — to have one of the deceased’s immovable assets, in the form of a terrace house, to be vested to the only son of the deceased, as opposed to the same being shared by all the deceased’s five heirs in accordance with the principles of Faraid (Islamic Law of Inheritance).

In support of the application is the Persetujuan Waris or the Heirs Agreement by way of Statutory Declarations (SDs) which have been individually affirmed by the very same deceased’s heirs (in the presence of the Commissioner for Oaths) after the passing of the deceased and stating that they indeed agree to that arrangement.

There is nothing extraordinary to the application, something I have been accustomed to on a regular basis in my near 29-year legal career.

As such, I was expecting the usual approximately 20-minute turnaround timeframe, from introducing myself as the solicitor on record for the applicant, submitting briefly on the application proper, to the eventual “order-in-terms” pronouncement by the presiding Senior Assistant Registrar (SAR) as a matter of recourse.

The SAR’s direction

Instead, and for the first time over 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 have the same legal standing, ie, both are written statements made under oath and deposed as true, but with the latter given specifically in the course of a court proceeding, and the former, a completely standalone document.

In any case, SDs can equally be admitted as evidence in a court proceeding provided it is introduced in consonance with the law, as per the Court of Appeal ruling in Lee Chye Yen [2014] 4 MLJ 595 — principally, the SDs must be exhibited in the manner prescribed under Order 41, Rule 11, Rules of Court 2012. This has been done in the application at hand.

Armed with that knowledge, I objected to the SAR’s direction.

In turn, the SAR fixed a date of 13 November 2025 for me to appear before the presiding Civil High Court judge to argue my points.

14This essay first appeared as "Much ado about heirs agreement", Twentytwo13, 4 February 2026:

https://twentytwo13.my/much-ado-about-heirs-agreement/

Section 60(2), and the point everyone missed

In the interim, I took the opportunity to file into court, written submissions (yes, several) in the hope that by the forthcoming hearing date, the judge would be so overwhelmed by my persistency that he would grant order-in-terms as a mere formality. Not exactly sure about the soundness of this strategy but it does help to be positive.

I should mention that in the said written submissions, I put forward what I believe to be an extremely important legal point often overlooked — in so far as the application at hand (or similar) is concerned which was made pursuant to Section 60(2) of the Probate & Administration Act 1959, it is only the “concurrence” of the administrator that is required. There is no legal requirement whatsoever to obtain the consent from the deceased’s heirs for the application to succeed though in practice, and as a matter of transparency, I would always advise procuring same.

Within that Section 60(2) parameter, the Civil High Court cannot in principle dismiss such an application even in the absence of the Persetujuan Waris (in whatever shape and form). Of course, this does not mean that the administrator is given carte blanche to do as he or she pleases but must always act in the best interest of the estate and that position can be drawn from reading the High Court case of Sivamni [2017] MLJU 1206, which in turn followed the binding Court of Appeal authority of Lau Yoke Hee [2005] 3 CLJ 770.

“It is there”

Anyway, 13 November did not turn out as I had hoped.

The presiding judge briefly reiterated that the Persetujuan Waris must be in the form of Affidavits, and when asked as to the legal basis for such a direction, his brief reply: “It is there”.

As I am standing and looking up at the judge who clearly has a vantage view of the courtroom, I am wondering to myself, where exactly is “there”? Is it in some hidden compartment in the judge’s chambers where he keeps all the best laws to himself, as for the life of me, I am not aware of any but then again, I am not perched on high with supposedly overwhelming clarity of the world but instead firmly standing, body and mind, on firm ground with all the flaws imbued in me as a person and graciously recognising so.

Six appearances, one answer

The judge then gave another date of 26 November 2025 where by then, I am to file the Persetujuan Waris in the format directed.

26 November came with me still unwavering, and the judge simply gave another date of 9 December 2025 where he planned to give his decision.

On 9 December, the judge appeared visibly perturbed as I remained steadfast and ordered my matter to be stood down as he attended to other open court hearings, and upon disposing them, returned to his chambers leaving me feeling unrequited.

During the adjournment, his interpreter approached me and mentioned that she alluded to the judge of existing precedents on Persetujuan Waris being in the form of SDs (as per my written submission), and in that, gave me the impression that I could perhaps get closure on that day itself but was surprised when being told that the judge pushed the matter back to his SAR for a decision.

This was extremely odd as the matter was already before the judge and to my understanding, it was for him to put finality over same, not relegate to his SAR, and with that, 17 December 2025 was fixed for that purpose.

On 17 December, I could sense my prodigal return to the SAR was antithetical to everything that brought joy to her. A tense, brief exchange ensued where she simply regurgitated that the Persetujuan Waris must be in the form of Affidavits.

I maintained my position as per client’s instructions and the SAR fixed another date of 6 January 2026 for a decision.

On that 6 January, to my absolute surprise, the SAR granted “order-in-terms”, vindicating my stance that undeniably there is nothing in law which dictates that the Persetujuan Waris must be in the form of Affidavits.

Thus, after 6 court appearances, victory ultimately came though on my part, I could not help but feel extremely frustrated by the needless lengthy drama that I had to go through.

Was the SAR, and by extension, the judge, not aware of the applicable law during the first 5 court appearances, and only discovered that their position was legally untenable at the 6th? What actually went on within that judicial thinking?

A closing word

Anyway, as much as I would like to make this a comedy, it is far from it. It is a travesty where the court through some apparently capricious posturing, and in clear absence of legal authority, placed unnecessary hardships not just to the applicant at hand but to every affected family member who waited patiently for that closure.

Still, it would be extremely unfair for me to suggest that such aberrations are the norm in the judiciary but more the exception, though worryingly, a trait somewhat increasingly in frequency from my encounters where very young and discernibly inexperienced SARs regard even any form of questioning of their direction, however respectfully, as an affront to their indomitable authority. This is surely unhelpful as lawyers are also officers of the court who are constantly tasked to respectfully assist the very court they appear before on questions of law, hence, a healthy collaboration between the two is necessary and should not be seen as an attempt to bring disrepute to this branch of government.

With that, I now come to my own personal closure and hopes over this whole affair.

The first, that things will eventually improve through better training within the judicial circle, after all, the courts are supposedly the last bastion in which members of the public can and should place their trust to dispense justice in a timely manner, and by competent people.

Secondly and last, I remain curious to find out what the judge actually meant when he remarked “it is there” — perhaps revelation can finally take place during light moments between the judge and I at the Bar-Bench annual dinner (if it ever happens), and ideally, in the company of the same SAR.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.

11. When SAR’s Direction Becomes Personal & Retaliatory

An ex parte amendment application, a disputed Afidavit Lanjutan, and a Senior Assistant Registrar’s direction that drifted from statutory interpretation into something more personal.

Megat Shaharuddin Merican · Advocate & Solicitor15

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This is another courtroom parody I believe worth sharing, revolving around my appearance some months back before a Senior Assistant Registrar (SAR) at the Kuala Lumpur Civil High Court.

Allow me to set the scene.

On 18 December 2025, I appeared before a SAR for a very exciting ex parte application filed by my client, the Administrator to the deceased’s estate, for the purpose of amending the List of Assets and Liabilities appended to the Grant of Letters of Administration.

It being ex parte meant that the quorum would comprise of just me, the SAR, together with whatever endearing personality she decides to bring to court for the day.

In support of the application is the affidavit by the Administrator which referred to an Agreement duly exhibited (in accordance with Order 41, Rule 11, Rules of Court 2012), and entered by same, the deceased’s father, and another party, with the Recital (as stated therein), explaining why the amendments were necessary.

The Afidavit Lanjutan direction

Unsatisfied, the SAR directed that specific parts of the Recital be reproduced in a separate document altogether, explicitly, in an Afidavit Lanjutan (Further Affidavit).

I openly questioned the veracity of that direction as it makes no legal sense whatsoever as the reasons in the Recital, have already been deposed as true so to do again albeit in a different format would bring no additional value to the application.

The young SAR, apparently still seething from my previous encounter with her where I successfully challenged her egregious direction in an ex parte probate application (before a High Court Judge in chambers — a story for another time perhaps), was clearly not going to allow a greying over-the-hill lawyer to have the better of her for the second time round and stood officiously firm.

A costly concession

To prevent what I saw as a potential meltdown, I obliged, and on 31 December 2025, I appeared again before the same SAR with the Afidavit Lanjutan duly filed but cheekily stating therein that the Administrator could not comprehend the soundness of the SAR’s direction (mentioned her by name), but nevertheless agreed to oblige in the interest of closure.

In hindsight, that was clearly poor strategy on my part, and the SAR went off on a tirade with her pupils very much dilated with fury and made even more pronounced by her thick glasses.

After the administrative venting, she fixed 19 January 2026 for me to submit before the presiding High Court Judge and to explain to her why I objected to the filing of the Afidavit Lanjutan.

This was when we entered the realm of the bizarre and clearly one which was not based on the soundness of law, but which suggests that the SAR was by then getting very personal and retaliatory in nature.

15This essay first appeared as "When a Senior Assistant Registrar's direction becomes personal and retaliatory", Twentytwo13, 11 March 2026: https://twentytwo13.my/when-a-senior-assistant-registrars-direction-becomes-personaland-retaliatory/

Order 32, Rule 10

On referring matters before the Judge, I am mindful of Order 32, Rule 10, Rules of Court 2012, which reads as follows:

The Registrar [includes SAR] may refer to a Judge any matter which he thinks should properly be decided by a Judge, and the Judge may either dispose of the matter or refer it back to the Registrar, as the case may be, with such directions as he thinks fit.

In essence, a matter is only referred to the Judge from the SAR, if the SAR is not able to decide on the matter herself.

Clearly here there was no reason to refer the matter to the Judge as the Administrator did file the Afidavit Lanjutan as directed even though objections were averred in same.

That said, I did, on 19 January, appear before the Judge for the purpose mentioned.

19 January, and order-in-terms

The Judge was genuinely curious how a simple ex parte matter was made to drag needlessly and sought my explanation. After some 20 minutes of a back and forth, the Judge granted order-interms though not before correctly but politely chastising me over the unnecessary paragraph in the Afidavit Lanjutan, which according to her exacerbated the situation though equally acknowledging that there were shortcomings also from her SAR.

A closing word

I understand that as lawyers, we always have to be at our best behaviour in matters we have conduct over but I have grown increasingly frustrated and less patient (more so after having passed the sixty year milestone) by what I see as a growing failure by SARs to try to even understand basic law specifically in the area of my practice but instead being fixated with pedantry and the need to see that their internal checklist for any particular application is blindly followed to a “T”.

Moving forward, it is my hope that the judiciary provides better structured training to these future judges by inculcating the need for critical thinking as opposed to the apparent regurgitation of the law without understanding context.

Until then, I would simply be happy not to chance upon this SAR again, and am sure, that that feeling is mutual.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.

12. Of Banks, LAs and the List of Assets

A second tribute to the banks of Malaysia — this time on why a sealed Letters of Administration needs no supporting cast to carry the full force of law.

Megat Shaharuddin Merican · Advocate & Solicitor16

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The last time I wrote an affectionate piece about banks was in August of 2022 with the title “Addressing banks’ undying love for death certificates”17. It was my literary homage at marvelling how methodical banks can be whenever they are required to decide on operational matters — in that instance, the importance for them to actually sight a person’s death certificate as the only proof of death — not even being served with simply a sealed Grant of Probate (Probate), or sealed Grant of Letters of Administration (LA), will do, in spite that both can only be issued after the High Court is satisfied that the person in question has died.

Clearly, in this context, banks demand higher standards of evidentiary proof than the High Court.

Four years on, I find myself encouraged yet again to do another tribute, and as always, from my perspective as an estate lawyer.

So as before, allow me to set the scene.

The chicken-and-egg gambit

On November 14, 2024, I managed to obtain a LA for my clients, to act as Joint Administrators favouring their late father’s estate from the Kuala Lumpur High Court.

Attached to the LA, are the deceased’s List of Assets & Liabilities, and the List of Heirs.

Sometime in January of this year, my clients reached out to me and intimated that they believed their late father may still have funds at one of the local banks, but regrettably, could not furnish any proof to support that.

Armed with instructions, I wrote to the said bank, and for argument’s sake, let us just refer to it as “the Iron Bank”, and sought to ascertain my clients’ query as per the aforesaid, and attaching to my email, a copy of the LA.

Iron Bank responded stating that they required me to furnish the complete set of LA together with the List of Assets & Liabilities which must show that indeed, the deceased has funds with them.

I believe what Iron Bank was trying to do was to lure me into a proverbial “chicken and egg” quixotic move which creates an unproductive and unrealistic “causality dilemma” — ie, which of the two should come first?

So, the ingeniousness of Iron Bank’s thinking here is that they wanted my clients to first provide evidence that their late father has funds with them, even though they know full well that my clients could not do so, hence me reaching out to them.

16This essay first appeared on Twentytwo13 under a different title, 29 May 2026: https://twentytwo13.my/when-banksdemand-proof-beyond-the-grave/

17Megat Shaharuddin Merican, "Addressing banks' undying love for death certificates", Twentytwo13, August 2022: https://twentytwo13.my/addressing-banks-undying-love-for-death-certificates/

What the law actually requires

Thankfully, I am mindful of Section 134 (read together with Schedule 11) of the Financial Services Act 2013 — which mandates that financial institutions disclose necessary information to the Administrator, or Executor, as the case may be, naturally relating to the deceased’s financial standing in same.

I am also mindful of section 7(2) of the Courts of Judicature Act 1964 which reads in part as follows:

...... orders [which includes a LA or Probate], shall have the full force and effect and may be served or executed anywhere within Malaysia.

Finally, it is worth noting that a LA or Probate shall be drafted by the High Court in consonance with Form 163 (as provided for in the Rules of Court 2012), and nowhere in the said Form 163, or anywhere in the Rules of Court 2012, or other statutes governing estate matters, it is required that either the LA or Probate to be attached to the List of Assets & Liabilities, or even the List of Heirs, before either can have the full force of the law.

To help the reader visualise my explanation, I append below the very LA issued to my clients with personal details redacted, but with key parts, highlighted.

It is evidently clear that those parts highlighted unequivocally show that the LA empowers the Administrators to have full legal access to all the deceased’s assets within the legal reach of the High Court of Malaya (this position should and must be the same for Probates).

Anyhow, as Iron Bank is in Malaya (a legal definition), and not in the Free City of Braavos, the said bank cannot then cavalierly ignore in giving due recognition to the LA, even in the absence of the List of Assets & Liabilities, and the List of Heirs. To do so can be construed as obstructing justice and being in contempt of court.

Capitulation

To encourage compliance, I indicated to Iron Bank that if the matter is not resolved in a timely manner, more so after being politely tutored on the law, I would have no choice but to weigh in the Central Bank of Malaysia for help if the matter remains unresolved.

Iron Bank capitulated — not only did they confirm that the deceased did in fact have funds with them, they also without any residual protest, released such funds into the estate account held at another bank managed by the Joint Administrators.

Moving forward, my hope, as an extension of this essay, is simply this — if it can be legally established that an asset belongs to the deceased, then, any person or any institution, whether government body or otherwise being made aware of this fact, should automatically accord due recognition to the named representative either appearing in the LA or Probate as the person having the absolute legal right to deal with that specific asset. Without doubt, this is the purpose of the LA or Probate, which on its own, is the complete sealed High Court order, and not dependent on any court approved appendixes attached to same as the totality of that legal authority.

A closing word

Now having read this piece, some may correctly wonder how on earth this is a tribute to banks, and my reply would simply be — it is a tribute in similar fashion as how banks require proof on someone dying. Ultimately, I find absolute joy and happiness whenever I am able to help my clients overcome absurdity and hardships placed before them by bureaucracy which sometimes correlate vacuous procedure with normalcy.

As an epilogue, permit me to share one of my favourite Hadiths of the Prophet (peace and blessing be upon him) which has profound relevance to the piece at hand, and which value was constantly ingrained in me as a student when I did my Diploma in Shari’ah Law and Practice at the International Islamic University Malaysia:

“Whoever puts the people into difficulties, Allah will put him into difficulties on the Day of Resurrection.” — Sahih al-Bukhari 7152

Regardless of one’s belief, the core teachings of that Hadith offer profound lessons for anyone in a position of authority. In that same vein, my ultimate hope is that financial institutions will embrace genuine empathy, rather than operating as mindless machines driven by bureaucratic pedantry — a zealotry anchored not on law, but on pure caprice.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.

13. Civil High Court Registrars & the All-You-Can-Eat Buffet Voucher

Two uncontested probate applications, two Registrars, two very different outcomes — and what that says about the limits of Order 71.

Megat Shaharuddin Merican · Advocate & Solicitor18

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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 appearance — 19 June 2026

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 who 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 20 April 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:

18This essay first appeared as "Civil High Court Registrars and the all you can eat buffet voucher", Twentytwo13, 17 July

2026: https://twentytwo13.my/civil-high-court-registrars-and-the-all-you-can-eat-buffet-voucher/

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 appearance — 23 June 2026

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 in 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 a 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.

An “all you can eat buffet voucher” is not a statutory power

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 a 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.

A closing word

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.

Megat Shaharuddin Merican

Advocate & Solicitor

High Court of Malaya

BC/M/710

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The writer is an advocate and solicitor of the High Court of Malaya with over 29 years in probate and estate administration practice.