TOPIC 3: LETTERS OF REPRESENTATION
(PART 2)
Non-Contentious Proceedings - O.71
Introduction
- O.71 has no application to Sabah & Sarawak because
the word ‘Act’ under O.71, r2 refers to PAA 1959
which is not applicable to Sabah & Sarawak.
Ong Ka Kim v Wong Sing Kiong [1997] 5 MLJ 46 -
Held in O 71 r 2 of the RHC, “Act” meant the Probate
and Administration Act 1959, which was only in force
in West Malaysia. Under the Act, the jurisdiction to
grant probate and letters of administration were vested
in the High Court in Malaya. However, the Act had not
been extended to Sarawak. Therefore, the law
applicable in Sarawak was not the Probate and
Administration Act 1959 but the Administration of
Estates Ordinance;
Application of GP
- Ensure that the Will is valid - fulfill requirement in
the Wills Act 1959.
- r.4 (1)(3): GP shall not be issued within 7 days of the
death of the deceased.
Application of LA
- r.4 (1)(3): LA shall not be issued within 14 days of
the death of the deceased
- Application can be made ASAP after death but court
will not grant immediately, so no urgency.
1. Filing Cause Papers
- PR can apply for LR without appointing a solicitor.
- O.71, r.3 (1): A personal applicant may apply for a
grant at the Registry; no need to be made through a
lawyer.
● “personal applicant” means a person other than
a trust corporation who seeks to obtain a grant
without employing a solicitor.
(A) Application of GP
- The Executor files an OS in Form 6 [r.5 (1)]
- In practice must file using Form 6 (Ex parte OS)
because it is a non-contentious matter.
- Refer Form 6 – Ex-parte OS (O.7, r.2)
- The OS must be supported with: Affidavit of the
Executor (Form 159) - [r.5 (1)]
- Refer Form 159 – Affidavit pursuant to the PAA
1959 (O.71, r.5)
Affidavit
- must be sworn before a Commissioner for Oaths [r.3
(6)]
- must set out: (content)
● information relating to the testator,
beneficiary, widower & children.
● minority interests under the Will (if any) [r.5
(2)]
● reason for delay in filing the application (if the
application is made after the lapse of 3 years
from the date of death). [r.5 (6)]
Exhibits to Affidavit
(a) Death certificate/evidence of death. [r.1 (5)]
- If no death cert, file 2 affidavits by independent
witnesses who can depose that they saw the dead body
& attended the funeral. (faster option)
Re Karupaya (Deceased) [1962] MLJ 128 - Practice
Note No.9 1946 - Where the fact of death is not in
doubt, and the applicant can swear that death had
occurred, no order is required on any application for
Probate or Grant of Letters of Administration to swear
that death had taken place. However, if there is
uncertainty, then an order is needed.
- S.18 Birth and Deaths Registration Act 1957 (Act
299) – registration of death of a person in Malaysia is
allowed only on condition that the body is found.
- If no dead body, an application for the presumption
of death under s.108 of the Evidence Act 1950 must
be made. However, it requires a period of 7 years to
elapse. The presumption of death constitutes a valid
proof death for estate administration purpose.
(b) List of assets & liabilities (refer Form 159)
(c) List of beneficiaries (refer Form 159)
(c) Original Will and Certified true copy. [r.7(1)]
- If the Will is not in English/BM): need to include also
translation of the Will - certified by a Court
Interpreter/verified by the affidavit of a person
qualified to translate it. [r.7(2)]
(d) Administration Oath in Form 161 [r.33]
- Refer Form 161 – Administration Oath (O.71,
r.33)]

(e) Other documents
- Letters of Renunciation in Form 160 [r.31 (4)]
stating; whether all persons having a prior right to a
grant have been cleared off and in what manner they
have been cleared off. [r.5 (2)]
● the Executor of first priority who decides not
to apply for GP, must expressly renounce his
right. [r.31 (1)]
● S.8 PAA: renunciation can be made in writing
and attested by an advocate/any person by
whom an affidavit may be sworn
● If did not file, renunciation can also be made
orally during hearing
- Refer Form 160 – Renunciation (O.71, r.31)
2. Hearing-Inquiries
Before Hearing - upon receiving the application,
Registrar shall give Notice in Form 158 about the
application to the Registrar of the Principal Registry
(RPR), KL and notify the serial number of the
Probate. r.4 (4)
- Refer Form 158 – Notice of filing of application
for probate/ administration (or caveat), etc (O.71,
r.4); (O.71, r.37)]
● RPR will enter that serial number in the
Probate Book. r.4 (4)
● Registrar fixed the date for hearing.
Hearing (between registrar and applicants)
- The applicant must be present in person for the
purpose of identification.
- r.4 (1): The Registrar will inquire into all matters.
The inquiries must be answered to his satisfaction.
- For satisfactory Inquiry, the Registrar may require:
(i) Proof of the identity of the deceased & the
applicant. r.4 (2)
(ii) Proof of Will [ for Application of GP]
● r.9 (1): The Registrar may require Affidavit as
to due execution from:
- attesting witnesses; or
- any person who was present at the time the
Will was executed.
- If a will;
● contains no attestation clause; or
● the attestation clause is insufficient; or
● appears to the Registrar that there is some
doubt about the due execution of the will
- r.13: in any such affidavit, the deponent shall depose
to the manner in which the will was executed.
- r.9 (3): If the Registrar, after considering the
evidence:
(a) satisfied that the Will was not duly executed; he
shall refuse probate; or
(b) if doubtful whether the Will was duly executed; he
may refer the matter to the Court.
- Other issues that need to be accounted to the
Registrar
● r.11: where there is alteration and doubt as to
the date of execution
● r.12: where there appear that there is attempted
revocation of the will
3. Court Order
- r.4 (1): If all inquiries which the Registrar may see fit
to make have been answered to his satisfaction, he will
then issue GP in Form 163 (r.35)
- Refer Form 163 – Grants (O.71, r.35)
- r.17: Order of priority for grant where deceased left a
will i.e. the person entitled to a LAWA shall be
determined in accordance with s.3 and s.16 of the
PAA.
- s.16 PAA
(i) a universal or residuary legatee;
(ii) a personal representative of a deceased
universal/residuary legatee;
(iii) such person/persons, being beneficiaries under the
will, as would have been entitled to a grant of letters of
administration if the deceased had died intestate;
(iv) a legatee having a beneficial interest; and
(v) a creditor of the deceased
- r.19: Where the deceased died wholly intestate, the
person entitled to LA shall be determined in
accordance with the provisions of s.30 of the PAA.
- S.30 PAA: Provided that, where the deceased died
wholly intestate as to his estate, administration shall, if
application is made for the purpose, be granted to some
one or more of the persons interested in the residuary
estate of the deceased.
- Once the probate is granted, the Executor can extract
the GP from the court Registry.
- Once GP is extracted, the Executor can proceed to:
● collect all the assets of the deceased to his
possession;
● settle all the debts & liabilities of the deceased;
and
● distribute the remainder of the estate according
to the Will.
(B) Application of LA
1. Filing cause papers
- The Applicant files an OS in Form 6
- Supported with Affidavit of the Applicant in Form
159
- Exhibits
● Death Certificate
● List of assets & liabilities
● List of liabilities
● Administration Oath in Form 161
● Letters of Renunciation in Form 160
- Refer Form 159 – Affidavit pursuant to the PAA
1959 (O.71, r.5)
- Refer Form 160 – Renunciation (O.71, r.31)
2. Hearing
Before Hearing - Registrar shall give Notice in Form
158
Hearing: The Registrar will inquire into all matters.
The inquiries must have been answered to his
satisfaction.
- Before fixing a date of hearing, the Registrar must
require the applicant to satisfy him that the estate is not
a small estate as defined under SEDA. [r.50 (1)(a)]
- If not satisfy, Registrar shall transfer the OS to LA
having jurisdiction under SEDA.
- Form 159 requires the applicant to make a
declaration as follows:
“The whole of the estate and effects of the deceased,
moveable and immovable, within the jurisdiction
exclusive of what the deceased was possessed of or
entitled to as Trustee for any other person or persons,
and not beneficially but without deducting anything on
account of the debts due or owing from the deceased,
does exceed in value two million ringgit to the best of
the applicant’s knowledge, information and belief.”
3. Court Order
- If all inquiries which the Registrar may see fit to
make have been answered to his satisfaction, he will
then issue LA in Form 163
Administration bond:
● The Applicant must furnish administration
bond in Form 162 as security for the due
administration of the estate. (r. 34)
 ● There shall be 2 sureties to every (a) to both parents of the infant jointly/
administration bond. r. 34 (2)
● to the statutory/testamentary guardian of the
● LA may only be extracted after the
infant/to any guardian appointed by a Court of
administrator has furnished the bond.
competent jurisdiction; or
Refer Form 162 – Administration Bond (O.71, r.34)
(b) if there is no such guardian able and willing to act
OTHER REQUIREMENTS OF BECOMING PR:
● If the infant has attained the age of 16 years: to
1. Application by attorney any next-of-kin nominated by the infant; or
● If the infant is a married woman, to any such
- S.29 (a) PAA: if an executor appointed by a will is;
next-of-kin or to her husband if nominated
● absent from Malaysia & there is no other by her.
executor within Malaysia willing to act,
- Requirements:
● LAWA may be granted to a duly authorized
attorney of the absent executor, limited until - O.71, r.27 (3): such an order may be made on
he obtains probate for himself application by the intended guardian;
- S.29 (c) PAA: if a person entitled to LA in case of ● who shall file an affidavit in support of the
intestacy is; application and,
● if required by the Registrar, an affidavit of
● absent from Malaysia & no person equally
fitness sworn by a responsible person.
entitled is willing to act,
● LA may be granted to an authorized attorney 3. Application by Trust Corporation
of the absent person, limited until he shall
- S.13 PAA: a trust corporation may be appointed as an
obtain a grant himself.
executor/ administrator and may also apply for a grant.
- O.71, r. 26: Where a person entitled (executor/person
- O.71, r.30 (1): Where a trust corporation applies for a
entitled to LA) to a grant resides outside Malaysia;
grant through one of its officers,
● LA/LAWA may be granted to his lawful
● such officer shall file a certified copy of the
attorney for his use & benefit, limited until
resolution authorizing him to make the
such person shall obtain a GP
application; and
- Requirements: ● shall depose in the OS that the corporation is a
trust corporation, and that it has power to
● the attorney shall file a certified true copy of
accept a grant.
the power of attorney (POA) with the OS; or
● prove that he has deposited POA / a certified - Provided that it shall not be necessary to file a
copy of POA in the Registry of the HC in the certified copy of the resolution;
manner provided by s.4 of the Powers of
● where the officer through whom the
Attorney Act 1949:
application is made is included in a list of
● where the person so entitled is an executor,
persons authorized to make such applications
● LAWA shall not be granted to his attorney
kept by the Registrar.
without notice to the other executors, if any,
unless such notice is dispensed with by the Other application
Registrar.
1. Application to prove & renounce probate
2. Application for by parent/ guardian
- S.40 PAA: The Court shall have power
- S.20 (1): No representation shall be granted to a
person while he is a minor. ● to summon any person named as executor in
any will
- But, if a minor was still being named as Executor and ● to prove/renounce probate of the will
he is the sole Executor, his Guardian can apply on his
behalf and obtain LAWA ● Method - By issuing a citation;
- O.71, r.27 (1): Where the person to whom a grant S.9 (1) PAA: Any person having/claiming any
would otherwise be made is an infant; interest in the estate of a deceased person, or any
creditor of a deceased person, may,
LA/LAWA for his use & benefit until he attains the
age of majority shall, be granted;
 ● without applying for representation,
● cause to be issued a citation
● directed to the executor/ executors appointed
by the deceased’s will, or to any person
appearing to have a prior right to
representation,
● calling upon the person cited to accept/
renounce the right
(i) Citation to accept/refuse/to take a grant (O.71, r.
42)
- O.71, r.42 (1): A citation to accept/refuse a grant
● may be applied by any person who would
himself be entitled to a grant in the event of
the person cited renouncing his right thereto.
- O.71, r.42 (2): A citation calling an executor who
has been reserved power to make a grant to accept/
refuse a grant
● may be applied by the executors who have
proved the will / of the executors of the last
survivor of deceased executors who have
proved.
- O.71, r.42(3): A citation calling on an executor
who has intermeddled in the estate of the deceased to
show cause why he should not be ordered to take a
grant;
● may be applied by any person interested in the
estate at any time after the expiration of 6
months from the death of the deceased.
- Provided that a citation to take a grant shall not be
issued while proceedings as to the validity of the will
are pending.
Default of appearance
- S.9 (2) PAA: Any person so cited may enter an
appearance to the citation,
● but if he makes default in appearance
thereto, he shall be deemed to have renounced
the right.
- O.71, r.42 (5): If the time limited for appearance has
expired & the person cited has not entered
appearance, -
(a) in the case of a citation under para (1) (i.e. citation
to accept/refuse a grant), the citor may apply to the
Registrar for an order for a grant to himself;
(b) in the case of a citation under para (2), the citor
may apply to the Registrar for an order that a note
be made on the grant that the executor in respect of
whom power was reserved has been duly cited and has
not appeared and that all his rights in respect of the
executorship have wholly ceased;
(c) in the case of a citation under para (3) (i.e. to take
a grant), the citor may
● apply to the Registrar by notice of application
(which shall be served on the person cited)
● for an order requiring such person to take a
grant within a specified time; or
● for a grant to himself/some other person
specified in the notice of application.
- O.71, r.42 (6): all these applications must be
supported by an affidavit showing that;
● the citation was duly served and
● that the person cited has not entered an
appearance.
Appearance entered
- O.71, r.42 (7): If the person cited has entered an
appearance but –
● has not applied for a grant under para (4), or
● has failed to prosecute his application with
reasonable diligence,
(a) in the case of a citation under para (1), the citor
may apply by notice of application to the Registrar
for an order for a grant to himself;
(b) in the case of a citation under paragraph (2), the
citor may apply by notice of application to the
Registrar for an order striking out the appearance
and for the endorsement on the grant of such a note
as is mentioned in subpara (5)(b); and
(c) in the case of a citation under para (3), the citor
may apply by notice of application to the Registrar -
for an order requiring the person cited to take a grant
within a specified time or for a grant to himself or
some other person specified in the notice of
application, and the notice of application shall be
served on the person cited.
(ii) Citation to propound a will (O.71, r. 43)
- r. 43 (1): A citation to propound a will shall be
(i) directed to the executors named in the will; and to
all persons interested thereunder, and
(ii) may be issued at the instance of (may be apply by)
any citor having an interest contrary to that of the
executors/ such other persons.
- r.43 (2): If the time limited for appearance has
expired and no person cited has entered an appearance,
or if no person who has appeared proceeds with
reasonable diligence to propound the will,
 ● the citor may apply by way of notice of
application for an order for a grant as if the
will were invalid.
Procedure for Citation (O.71, r. 41)
- O.71, r.41 (1): Every citation in Form 167 shall be
issued from the Registry.
- O.71, r.41 (2): Every averment in a citation, and such
other information as the Registrar may require,
● shall be verified by an affidavit sworn by the
person issuing the citation (“the citor”); or
● if there are two/more citors, by one of them:
- Provided that the Registrar may in special
circumstances accept an affidavit sworn by the citor’s
solicitor.
- O.71, r.41 (3): The citor shall enter a caveat before
issuing a citation.
- O.71, r.41 (4): Every citation must be served
personally on the person cited;
● unless the Registrar, on cause shown by
affidavit, directs some other mode of service,
which may include notice by advertisement.
- O.71, r.41 (5): Every will referred to in a citation
● must be filed in the Registry before the
citation is issued, except where the will is not
in the citor’s possession and the Registrar is
satisfied that it is impracticable to require it to
be filed.
- O.71, r.41 (6); A person who has been cited to appear
may,
● within 8 days of service of the citation upon
him inclusive of the day of such service, or, at
anytime thereafter if no application has been
made by the citor under rule 42(5) or 43(2),
● enter an appearance in Form 166 in the
Registry, and
● shall thereafter serve on the citor a copy of it
sealed with the seal of the Court.
2. Application for resealing of grant
- Refer Form 168 – Memorandum of resealing (O.71,
r.49)
- Refer Form 169 – Form for notice of resealing
(O.71, r.49)
3. Application to bring in will/ to attend for
examination
- S.41PAA: The Court may,
● on the application of any person interested,
● if it appears that there is reason to believe that
any will/ other testamentary document of a
deceased person
● is in the possession/under the control of any
person, or
● that any person has knowledge of the existence
of such a will/ document,
● order that the person do, within a time named,
● produce the will or document at the Registry,
or
● attend at a time named before a Court, to be
examined in relation to that document.
- O. 71, r. 45
● application under s.41 PAA - to bring in will/to
attend for examination
● shall be made to a Judge by OS,
● which shall be served on every such person as
aforesaid.
Lau Siang Kok, Lionel v Lau Cho Kun @ Lau Yu
Chak, Datuk Seri Panglima [2013] MLJU 0915 -
Court finds that the phrase "any person interested"
appearing in S.41 of the 1959 Act, is not to be
interpreted to mean "the world at large". It should be
restricted to an individual or group of individuals who
have a "recognised" interest in the Estate of the
Deceased. The 1959 Act clearly refers to a beneficiary,
a residual legatee, a creditor or a trustee and this Court
finds that the Plaintiff does not fall into any of these
categories. The Plaintiff is a stranger for all intents and
the purposes of the Estate of the Deceased as he is not
a beneficiary under the Will. Being an alleged natural
or illegitimate son of the Deceased, does not mean that
the Plaintiff falls within the meaning of the "any
person interested" as contemplated by S.41 of the 1959
Act. S.41 of the 1959 Act is inoperative until and
unless an application for grant of probate has been
made, hence this application under S.41 of the 1959
Act is premature.”
4. Application for an order admitting to proof
- O. 71, r. 46
● application for an order admitting to proof
● a nuncupative will (oral will), or
● a will contained in a copy, a completed
draft, a reconstruction/other evidence or its
contents where the original will is not
available,
● may be made to the Court by notice of
application
 ● where a will is not available owing to it being accordance with Indian law and it was proper for the
retained in the custody of a foreign court to take cognizance of this fact. There was
Court/official, a duly authenticated copy of therefore no merit in the applicant's contention that the
the will may be admitted to proof by virtue of alleged will was invalid;
s.27 PAA without any such order as aforesaid.
- O.71, r.46 (2): The application shall be supported;
Lost Will
● by affidavit setting out the grounds of the
- S.25 PAA: If the original will was lost/mislaid after application; and
the death of the Testator/cannot for any sufficient ● by such evidence on affidavit as the applicant
reason be produced, a limited GP may be granted can adduce as to -
based on:
(a) the due execution of the will;
● copy/draft of the lost Will; or
(b) its existence after the death of the testator;
● its contents (if no copy/draft)
and
(c) the accuracy of the copy or other evidence
Re Kuan Kim Hock @ Guan Kim Hock [2005] 4
of the contents of the will, together with any
MLJ 397 - Held that a Probate may be granted of the
consents in writing to the application given
contents of the Will, pursuant to s 25of the Act. Under
by any persons not under disability who would
s 25(b) of the Act, evidence of the contents of a Will
be prejudiced by the grant.
may be proved to obtain a limited grant of probate
where the original Will has been lost or misplaced, and
it cannot be found even after reasonable steps have
been taken to search for it. Section 25 of the Act may
be invoked where the court was satisfied that the copy
or draft of the Will produced was identical with the
original. Probate of a copy of a lost Will may be
granted where there was sufficient evidence of the
existence of the original Will after the death of the
testator.
Destroyed Will
- S.26 PAA: same as lost will, if the original will was
destroyed, limited GP may be granted based on
copy/draft of the destroyed Will; or its contents.
Wong Fong Yin & Anor v Wong Choi Lin & Anor
and another suit [2013] 4 MLJ 82 - Court held that
there was no evidence to suggest the deceased had
wanted to destroy or revoke the will or to not benefit
WCL. Accordingly, the presumption of revocation had
been rebutted by the conduct of the deceased and by
inference from the circumstances of the case. Probate
may be granted to the copy of the will as it had been
sufficiently established on balance of probabilities.
Will deposited in a court outside Malaysia
- S.27 PAA: GP may be granted based on
authenticated copy of a will, if the original has been
deposited in a court outside Malaysia.
RM P RM P v Palaniyappan v Npl St Mv
Ramanathan Chettiar [1977] 2 MLJ 34 - Held as
the will was executed in India the question of its
validity should be determined in accordance with the
relevant Indian law. In this case the question of the
validity of the will had been determined in India in