Uncontested probate applications and the effect of Order 71, Rule 9(1), Rules of Court 2012

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 Justice Datuk Syed Othman Ali in Re Amanullah bin Haji Ali Hasan (1974):

(i) The will is in writing (ii) The will is signed at the foot or end thereof by an adult who has reached the age of majority (iii) 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 Re Teoh Ying Rin (2025).

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.

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.

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.

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 Junaidi & Anor v Hj Abu Bakar bin Hj Munaf & Ors (1997)

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.

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.

The views expressed here are the personal opinion of the writer and do not necessarily represent that of Twentytwo13.