71. Non-Contentious Probate Proceedings.

71. Non-Contentious Probate Proceedings.
ORDER 71
NON-CONTENTIOUS PROBATE PROCEEDINGS
1. Applications. (O. 71 r. 1)
These rules apply to non-contentious probate proceedings subject to the following rules of this Order.2. Interpretation. (O. 71 r. 2)
In these rules, unless the context otherwise requires–
"Act" means the Probate and Administration Act, 1959 (Act 97).
"Collector" means a Collector of Land Revenue and includes any officer acting under the provisions of the Small Estates (Distribution) Act, 1955;
"District Registry" means the respective office of any Assistant Registrar as provided for by section 77A(2) of the Act;"
"gross value" in relation to any estate means the value of the estate without deduction for debts, incumbrances, funeral expenses or estate duty;
"personal applicant" means a person other than a trust corporation who seeks to obtain a grant without employing a solicitor, and "personal application" has a corresponding meaning;
"Principal Registry" means the Principal Registry in Kuala Lumpur or the Principal Registry in Kuching, as the case may require;
"Registrar" means the Registrar and any Deputy Registrar, Senior Assistant Registrar and Assistant Registrar (including any Assistant Registrar qualified under section 77A(2) of the Act) of the High Court;
"Registrar of the Principal Registry" means the Registrar of the High Court and does not include any other Registrar.
"Statutory guardian" means a guardian of an infant appointed by the High Court under section 6, 9 or 13 of the Guardianship of Infants Act 1961 (13/61);
"testamentary guardian" means a person as defined in section 7 of the Guardianship of Infants Act 1961;
"trust corporation" means a company registered as a trust company under the Trust Companies Act 1949 (Act 100) and includes the Public Trustee;
"will" includes a nuncupative will and any testamentary document or copy or reconstruction thereof.3. Personal applications. (O. 71 r. 3)
(1) A personal applicant may apply for a grant at the Registry.
(2) A personal applicant may not apply through an agent, whether paid or unpaid, and may not be attended by any person acting or appearing to act as his adviser.
(3) No personal application must be received or proceeded with if–
(a) it becomes necessary to bring the matter before the Court by action;
(b) an application has already been made by a solicitor on behalf of the applicant and has not been withdrawn;
(c) the Registrar otherwise directs.(4) After a will has been deposited in the Registry by a personal applicant, it may not be delivered to the applicant or to any other person unless in special circumstances the Registrar directs.
(5) A personal applicant must produce a certificate of death of the deceased or such other evidence of the death as the Registrar may approve.
(6) Every oath, affidavit or bond required on a personal application (other than a bond given by a corporation in accordance with rule 34) must be sworn or executed by all deponents or obligors before a Commissioner for Oaths.4. Duty of Registrar on receiving application for grant. (O. 71 r. 4)
(1) The Registrar must not allow any grant to issue until all inquiries which he may see fit to make have been answered to his satisfaction.
(2) The Registrar may require proof of the identity of the deceased or of the applicant for the grant beyond that contained in the petition.
(3) Except with the leave of the Registrar, no grant of probate or of administration with the will annexed shall issue within 7 days of the death of the deceased and no grant of administration shall issue within 14 days thereof.
(4) When an application for a grant is filed, the Registrar must give notice in Form 167 to the Registrar of the Principal Registry and notify the serial number of the Probate to the latter, who must enter that number in the Probate Book.
(5) The Registrar must notify the Registrar of the Principal Registry of all grants made under the Act and the rules of this Order.5. Application for grant by petition. (O. 71 r. 5)
(1) Every application for a grant must be by petition in one of the forms in Form 168 and the petition must be verified by oath which must be contained in an affidavit sworn by the applicant, and supported by such other papers as the Registrar may require.
(2) On an application for a grant of administration the petition must state whether, and if so, in what manner all persons having a prior right to a grant have been cleared off, and whether any minority or life interest arises under the will or intestacy.
(3) Where the deceased died domiciled outside Malaysia, the petition must state where the deceased died domiciled.
(4) If the petition states where the deceased died domiciled (whether in or outside Malaysia) a statement as to the country in which he died domiciled may be included in the grant.
(5) In every petition–
(a) where any person is named as a relative of the deceased, he must, if a lawful relative, be so described, and where the legality of any such relationship is alleged by virtue of any law or custom, such law or custom must be stated;
(b) where it is alleged that any person is entitled to share in the distribution of an intestate’s estate, it must be stated how such person is related to the deceased, and whether he is the only or one of the next-of-kin and by what law or custom so entitled.(6) Where an application for a grant is, for the first time, made after the lapse of 3 years from the death of the deceased, the reason for the delay in making the application must be set out in the petition.6. Grant in additional name. (O. 71 r. 6)
Where it is necessary to describe the deceased in a grant by some name in addition to his true name, the applicant must state in the petition the true name of the deceased and must depose that some part of the estate, specifying it, was held in the other name, or as to any other reason that there may be for the inclusion of the other name in the grant.7. Marking of wills. (O. 71 r. 7)
(1) Every will in respect of which an application for a grant is made must be exhibited to the petition and a certified true copy of the will must be annexed thereto.
(2) Where the will is not in the English language there must also be annexed to the application under paragraph (1) a translation certified by a Court Interpreter or a translation verified by the affidavit of a person qualified to translate it.8. Engrossments for purposes of record. (O. 71 r. 8)
(1) Where the Registrar considers that in any particular case a photographic copy of the original will would not be satisfactory for purposes of record, he may require an engrossment suitable for photographic reproduction to be filed.
(2) Where a will contains alterations which are not admissible to proof, there must be filed an engrossment of the will in the form in which it is to be proved.
(3) Any engrossment filed under this rule must reproduce the punctuation, spacing and division into paragraphs of the will and, if it is one to which paragraph (2) applies, it must be on durable paper.
(4) Where any pencil writing appears on a will, there must be filed a copy of the will or of the pages or sheets containing the pencil writing, in which there must be underlined in red ink those portions which appear in pencil in the original.9. Evidence as to due execution of will. (O. 71 r. 9)
(1) 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.
(2) If no affidavit can be obtained in accordance with paragraph (1), the Registrar may, if he thinks fit having regard to the desirability of protecting the interest of any person who may be prejudiced by the will, accept evidence on affidavit from any person he may think fit to show that the signature on the will is in the handwriting of the deceased, or of any other matter which may raise a presumption in favour of the execution of the will.
(3) If the Registrar, after considering the evidence–
(a) is satisfied that the will was not duly executed, he shall refuse probate and shall mark the petition accordingly;
(b) is doubtful whether the will was duly executed, he may refer the matter to the Court.10. Execution of will of blind or illiterate testator. (O. 71 r. 10)
Before admitting to proof a will which appears to have been signed by a blind or illiterate testator or by another person by direction of the testator, or which for any other reason gives rise to doubt as to the testator having had knowledge of the contents of the will at the time of its execution, the Registrar must satisfy himself that the testator had such knowledge.11. Evidence as to terms, conditions and date of execution of will. (O. 71 r. 11)
(1) Where there appears in a will any obliteration, interlineation, or other alteration which is not authenticated in the manner prescribed by section 15 of the Wills Ordinance 1959 (38/59)* or by the reexecution of the will or by the execution of a codicil, the Registrar shall require evidence to show whether the alterations was present at the time the will was executed and shall give directions as to the form in which the will is to be proved:
Provided that this paragraph shall not apply to any alteration which appears to the Registrar to be of no practical importance.
(2) If from any mark on the will it appears to the Registrar that some other document has been attached to the will, or if a will contains any reference to another document in such terms as to suggest that it ought to be incorporated in the will, the Registrar may require the document to be produced and may call for such evidence in regard to the attaching or incorporation of the document as he may think fit.
(3) Where there is a doubt as to the date on which a will was executed, the Registrar may require such evidence as he thinks necessary to establish the date.12. Attempted revocation of will. (O. 71 r. 12)
Any appearance of attempted revocation of a will by burning, tearing or otherwise, and every other circumstance leading to a presumption or revocation by the testator, must be accounted for to the Registrar’s satisfaction.13. Affidavit as to due execution, terms, etc. of will. (O. 71 r. 13)
The Registrar may require an affidavit from any person he may think fit for the purpose of satisfying himself as to any of the matters referred to in rules 10, 11 and 12, and in any such affidavit sworn by an attesting witness or other person present at the time of the execution of a will the deponent must depose to the manner in which the will was executed.14. Wills not proved under section 6 of Wills Ordinance. (O. 71 r. 14)
Nothing in rule 9, 10, 11 or 12 shall apply to any will which it is sought to establish otherwise than by reference to section 5 of the Wills Ordinance 1959 but the terms and validity of any such will must be established to the Registrar’s satisfaction.15. Wills of persons on military service and seamen. (O. 71 r. 15)
If it appears to the Registrar that there is prima facie evidence that a will is one to which section 26 of the Wills Ordinance 1959 applies the will may be admitted to proof if the Registrar is satisfied that it was signed by the testator or, if unsigned, that it is in the testator’s handwriting.16. Evidence of foreign law. (O. 71 r. 16)
Where evidence of the law of a country outside Malaysia is required on any application for a grant, the affidavit of any person who practises, or has practised, as a barrister or advocate in that country and who is conversant with its law may be accepted by the Registrar unless the deponent is a person claiming to be entitled to the grant or his attorney, or is the spouse of any such person on attorney:
Provided that the Registrar may in special circumstances accept the affidavit of any other person who does not possess the qualifications required by this rule if the Registrar is satisfied that by reason of such person’s official position or otherwise he has knowledge of the law of the country in question.17. Order of priority for grant where deceased left a will. (O. 71 r. 17)
The person or persons entitled to a grant of probate or administration with the will annexed must be determined in accordance with the provisions of sections 3 and 16 of the Act.18. Grants to attesting witnesses, etc. (O. 71 r. 18)
Where a gift to any person fails by reason of section 9 of the Wills Ordinance 1959 (38/59) (which provides that gifts to attesting witnesses or their spouses shall be void), such person shall not have any right to a grant as a beneficiary named in the will, without prejudice to his right to a grant in any other capacity.19. Order of priority for grant in case of intestacy. (O. 71 r. 19)
Where the deceased died wholly intestate, the person entitled to a grant of administration must be determined in accordance with the provisions of section 30 of the Act.20. Right of assignee to a grant. (O. 71 r. 20)
(1) Where all the persons entitled to the estate of the deceased (whether under a will or on intestacy) have assigned their whole interest in the estate to one or more persons, the assignee or assignees shall replace, in the order of priority for a grant of administration, the assignor or, if there are two or more assignors, the assignor with the highest priority.
(2) Where there are two or more assignees, administration may be granted with the consent of the others to any one or more (not exceeding four) of them.
(3) In any case where administration is applied for by an assignee, a copy of the instrument of assignment must be lodged in the Registry.21. Additional personal representatives. (O. 71 r. 21)
(1) An application under section 4(2) of the Act to add a personal representative must be made by summons to the Registrar and must be supported by affidavit by the applicant, the consent of the person proposed to be added as personal representative and such other evidence as the Registrar may require.
(2) A summons under paragraph (1) must be served on all persons entitled in the same degree as the applicant.
(3) On any such application the Registrar may direct that a note shall be made on the original grant of the addition of a further personal representative, or he may impound or revoke the grant or make such other order as the circumstances of the case may require.22. Grants where two or more persons entitled in same degree. (O. 71 r. 22)
(1) A grant may be made to any person entitled thereto without notice to other persons entitled in the same degree.
(2) A dispute between persons entitled to a grant in the same degree must be brought by summons before the Registrar.
(3) Unless the Registrar otherwise directs, administration shall be granted to a living person in preference to the personal representative of a deceased person who would, if living, be entitled in the same degree and to a person not under disability in preference to an infant entitled in the same degree.
(4) If the issue of a summons under this rule is known to the Registrar, he shall not allow any grant to be extracted until such summons is finally disposed off.23. Exceptions to rules as to priority. (O. 71 r. 23)
(1) Nothing in rule 17, 19 or 22 shall operate to prevent a grant being made to any person to whom a grant may or may require to be made under any written law.
(2) The rules mentioned in paragraph (1) shall not apply where the deceased died domiciled outside Malaysia, except in a case to which the proviso to rule 25 applies.24. Grants to persons having spes succession. (O. 71 r. 24)
When the beneficial interest in the whole estate of the deceased is vested absolutely in a person who has renounced his right to a grant and has consented to adminstration being granted to the person or persons who would be entitled to his estate if he himself had died intestate, adminstration may be granted to such person or one of more (not exceeding four) of such persons.25. Grants where deceased died domiciled outside Malaysia. (O. 71 r. 25)
Where the deceased died domiciled outside Malaysia, an application may be made to the Registrar for an order for a grant–
(a) to the person entrusted with the adminstration of the estate by the Court having jurisdiction at the place where the deceased died domiciled;
(b) to the person entitled to administer the estate by the law of the place where the deceased died domiciled;
(c) if there is no such person as is mentioned in subparagraph (a) or (b) or if in the opinion of the Registrar the circumstances so require to such person as the Registrar may direct;
(d) if, by virtue of section 4 of the Act, a grant is required to be made to, or if the Registrar in his discretion considers that a grant should be made to, not less than two adminstrators, to such person as the Registrar may direct jointly with any such person as is mentioned in subparagraph (a) or (b) or with any other person:Provided that without any such application as aforesaid–
(a) probate of any will which is admissible to proof may be granted–
(i) if the will is in the English language, to the executor named therein;
(ii) if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person;(b) where the whole of the estate in Malaysia consists of immovable property, a grant limited thereto may be made in accordance with the law which would have been applicable if the deceased had died domiciled in Malaysia.26. Grants to attorneys. (O. 71 r. 26)
Where a person entitled to a grant resides outside Malaysia, adminstration may be granted to his lawfully constituted attorney for his use and benefit, limited until such person shall obtain a grant or in such other way as the Registrar may direct:
Provided that the attorney must file a certified true copy of the power of attorney with the petition or prove that he has deposited it or a certified copy of it in the Registry of the High Court in the manner provided by section 4 of the Powers of Attorney Ordinance 1949 (64/49);
And provided that where the person so entitled is an executor, adminstration shall not be granted to his attorney without notice to the other executors, if any, unless such notice is dispensed with by the Registrar.27 Grants on behalf of infants. (O. 71 r. 27)
(1) Where the person to whom a grant would otherwise be made is an infant, administration for his use and benefit until he attains the age of majority shall, subject to paragraphs (3) and (5) be granted–
(a) to both parents of the infant jointly or to the statutory or testamentary guardian of the infant or to any guardian appointed by a Court of competent jurisdiction; or
(b) if there is no such guardian able and willing to act and the infant has attained the age of sixteen years, to any next-of-kin nominated by the infant or where the infant is a married woman, to any such next-of-kin or to her husband if nominated by her.(2) Any person nominated under subparagraph (b) of paragraph (1) may represent any other infant whose next-of-kin he is, being an infant below the age of sixteen years entitled in the same degree as the infant who made the nomination.
(3) Notwithstanding anything in this rule, administration for the use and benefit of the infant until he attains the age of majority may be granted to any person assigned as guardian by order of the Registrar in default of, or jointly with, or to the exclusion of, any such person as is mentioned in paragraph (1); and such an order may be made on application by the intended guardian, who shall file an affidavit in support of the application and, if required by the Registrar, an affidavit of fitness sworn by a responsible person.
(4) Where by virtue of section 4 of the Act, a grant is required to be made to not less than two administrators and there is only one person competent and willing to take a grant under the foregoing provisions of this rule, administration may, unless the Registrar otherwise direct, be granted to such person jointly with any other person nominated by him as a fit and proper person to take the grant.
(5) Where an infant who is sole executor has no interest in the residuary estate of the deceased, administration for the use and benefit of the infant until he attains the age of twenty-one years shall, unless the Registrar otherwise directs, be granted to the person entitled to the residuary estate.
(6) An infant’s right to administration may be renounced only by a person assigned as guardian under paragraph (3) and authorized to renounce by the Registrar.28. Grants where infant co-executor. (O. 71 r. 28)
(1) Where one of two or more executors is an infant, probate may be granted to the other executor or executors not under disability, with power reserved of making the like grant to the infant on his attaining the age of majority, and administration for the used and benefit of the infant until he attains the age of majority may be granted under rule 27 if and only if the executors who are not under disability renounce or, on being cited to accept or refuse a grant fail to make an effective application therefor.
(2) An infant executor’s right to probate on attaining the age of majority may not be renounced by any person on his behalf.29. Grants in case of mental or physical incapacity. (O. 71 r. 29)
(1) Where the Registrar is satisfied that a person entitled to a grant is by reason of unsoundness of mind or physical incapacity in-capable of managing himself or his affairs, administration for his use and benefit, limited during his incapacity or in such other way as the Registrar may direct, may be granted–
(a) in the case of unsoundness of mind, to the person authorized by the High Court; or
(b) Where there is no person so authorized, or in the case of physical incapacity–
(i) if the person incapable is entitled as executor, to the person entitled to the residuary estate of the deceased:
(ii) if the person incapable is entitled otherwise than as an executor, to the person who would be entitled to a grant in respect of his estate if he had died intestate;or to such other person as the Registrar may by order direct.
(2) Unless the Registrar otherwise directs, no grant of administration shall be made under paragraph (1) unless all persons entitled in the same degree as the person incapable have been cleared off.
(3) In the case of physical incapacity, notice of intended application for a grant under paragraph (1) shall, unless the Registrar otherwise directs, be given to the person alleged to be so incapable.30. Grants to trust corporations and other corporate bodies. (O. 71 r. 30)
(1) Where a trust corporation applies for a grant through one of its officers, such officer must file a certified copy of the resolution authorizing him to make the application and must depose in the petition that the corporation is a trust corporation, and that it has power to accept a grant:
Provided that it shall not be necessary to file a certified copy of the resolution where the officer through whom the application is made is included in a list of persons authorized to make such applications kept by the Registrar.
(2) Where a trust corporation applies for a grant of administration otherwise than as attorney for some person, there must be filed with the petition the consents of all persons entitled to a grant and of all persons interested in the residuary estate of the deceased, unless the Registrar directs that such consents be dispensed with on such terms, if any, as he may think fit.
(3) Where a corporation (not being a trust corporation) would, if an individual, be entitled to a grant, administration for its use and benefit, limited until further representation is granted, may be granted to its nominee or, if the corporation has its principal place of business outside Malaysia, its nominee or lawfully constituted attorney, and a copy of the resolution appointing the nominee or, as the case may be, the power of attorney, sealed by the corporation or otherwise authenticated to the Registrar’s satisfaction must be filed with the petition for the grant, and the petition must state that the corporation is not a trust corporation.31 Renunciation of probate and administration. (O. 71 r. 31)
(1) Renunciation of probate by an executor shall not operate as renunciation of any right which he may have to a grant of administration in some other capacity unless he expressly renounces such right.
(2) Unless the Registrar otherwise directs, no person who has renounced administration in one capacity may obtain a grant thereof in some other capacity.
(3) A renunciation of probate or administration may be retracted at any time by leave of the Court in accordance with the provisions of section 10 of the Act:
Provided that only in exceptional circumstances may leave be given to an executor to retract a renunciation of probate after a grant has been made to some other person entitled in a lower degree.
(4) A written renunciation of a right to a grant under section 3 of the Act must be in one of the forms in Form 169.32. Notice to Attorney General of intended application for grant. (O. 71 r. 32)
In any case in which it appears that the State is or may be beneficially interested in the estate of a deceased person, notice of intended application for a grant must be given by the applicant to the Attorney General, and the Registrar may direct that no grant shall issue within a specified time after the notice has been given.33. Administration oath. (O. 71 r. 33)
An administration oath must be in Form 170 and must be attested by a Commissioner for Oaths.34. Administration bonds. (O 71 r. 34)
(1) An administration bond under section 35 of the Act must be in Form 171 and the signature of the administrator and any surety (not being, in either case, a corporation) must be attested by a Commissioner for Oaths.
(2) Except in a case to which paragraph (3) applies or where the Registrar otherwise directs, there must be two sureties to every administration bond.
(3) No surety shall be required on an application for a grant of administration–
(a) by a trust corporation, whether alone or jointly with an individual;
(b) by a servant of the Government acting in his official capacity;
(c) where the deceased left no estate.(4) The Registrar must so far as possible satisfy himself that every surety to an administration bond is a responsible person.
(5) Unless the Registrar otherwise directs, no person shall be accepted as a surety unless he is resident in Malaysia.
(6) No officer of the Registry shall become a surety without the leave of the Registrar.
(7) Where the proposed surety is a corporation (other than a trust corporation), there must be filed an affidavit by the proper officer of the corporation to the effect that it has power to act as surety and has executed the bond in the manner prescribed by its constitution, and containing sufficient information as to the financial position of the corporation to satisfy the Registrar that its assets are sufficient to satisfy all claims which may be made against it under any administration bond in respect of which it is or is likely to become a surety:
Provided that the Registrar may, instead of requiring an affidavit in every case, accept an affidavit made not less often than once in every year together with an undertaking by the corporation to notify the Registrar forthwith in the event of any alteration in its constitution affecting its power to become surety to administration bonds.
(8) An application under section 37 of the Act for an order to assign an administration bond must be made by summons to the Registrar and the summons must be served on the administrator and on every surety.35. Forms of grant. (O. 71 r. 35)
A grant made under the Act and the rules of this Order must be in one of the forms in Form 172.36. Amendment and revocation of grant. (O. 71 r. 36)
(1) If the Registrar is satisfied that a grant should be amended or revoked he may make an order accordingly:
Provided that except in special circumstances no grant shall be amended or revoked under this rule except on the application or with the consent of the person to whom the grant was made.
(2) The Registrar must notify the Registrar of the Principal Registry of any amendment or revocation of a grant under paragraph (1).37. Caveats. (O. 71 r. 37)
(1) Any person who wishes to ensure that no grant is made without notice to himself may enter a caveat.
(2) When a caveat is entered, the Registrar must forward a copy of the caveat and give notice in Form 167 to the Registrar of the Principal Registry.
(3) Any person who wishes to enter a caveat (in this rule called "the caveator") may do so by filing the caveat Form 173 in the Registry and obtaining an acknowledgment of entry from the proper officer, or by sending through the post at his own risk the caveat to the Registry.
(4) Where the caveat is entered by a solicitor on the caveator’s behalf, the name of the caveator must be stated.
(5) Except as otherwise provided by this rule, a caveat shall remain in force for 6 months from the date on which it is entered and shall then cease to have effect, without prejudice to the entry of a further caveat or caveats.
(6) The Registrar of the Principal Registry shall maintain an index of caveats entered in all Registries and on receiving a notice of an application for a grant made in any Registry or to a Collector he shall cause the index to be searched and shall notify the appropriate Registrar or Collector in the event of a caveat having been entered against the sealing of a grant for which application has been made in the Registry or to the Collector.
(7) The Registrar must not make any grant if he has knowledge of an effective caveat in respect thereof:
Provided that no caveat shall operate to prevent the making of a grant on the day on which the caveat is filed.
(8) A caveat may be warned by the issue from Registry of a warning in Form 174 at the instance of any person interested (in this rule called "the person warning") which must state his interest and, if he claims under a will, the date of the will, and must require the caveator to give particulars of any contrary interest which he may have in the estate of the deceased; and every warning or a copy thereof must be served on the caveator and the Registrar of the Principal Registry.
(9) A caveator who has not entered an appearance in Form 175 to a warning may at any time withdraw his caveat by giving notice at the Registry and serving a copy of it on the Registrar of the Principal Registry and the caveat shall thereupon cease to have effect and, if he has been warned, the caveator must give notice of withdrawal of the caveat to the person warning.
(10) A caveator having an interest contrary to that of the person warning may, within 8 days of service of the warning upon him inclusive of the day of such service, or at any time thereafter if no affidavit has been filed under paragraph (12), enter an appearance in Form 175 in the Registry, and must serve on the person warning and the Registrar of the principal Registry a copy if it sealed with the seal of the Court.
(11) A caveator having no interest contrary to that of the person warning but wishing to show cause against the making of a grant to that person may, within 8 days of service of the warning upon him inclusive of the day of such service, or at any time thereafter if no affidavit has been filed under paragraph (12), issue and serve a summons for directions, which must be returnable before the Registrar.
(12) If the time limited for appearance in Form 175 has expired and the caveator has not entered an appearance, the person warning may file in the Registry an affidavit showing that the warning was duly served and that he has not received a summons for directions under paragraph (11), and thereupon the caveat shall cease to have effect.
(13) Except with leave of the Registrar, no further caveat may be entered by or on behalf of any caveator whose caveat has ceased to have effect under paragraph (12) or rule 40.
(14) Upon an appearance being entered in answer to the warning of a caveat, the matter shall be deemed to be contested and the expenses of entry of such caveat and the warning thereof shall be considered as costs in the cause.
(15) In this rule "grant" includes a grant by any Court outside Malaysia which is produced for resealing by the High Court.38. Contested matters. (O. 71 r. 38)
(1) Every contested matter must be referred to a Judge who may dispose of the matter in dispute in a summary manner or direct that the provisions of Order 72 shall apply.
(2) Where a matter is directed to be disposed of summarily the petition (if any) shall ordinarily be adjourned into open Court for hearing and the Court may on such adjourned hearing either grant or refuse the petitioner’s prayer or make such other order as may be just.39. Notice of commencement of probate action. (O. 71 r. 39)
Upon the commencement of a probate action, the Registrar shall, in respect of each caveat then in force (other than a caveat entered by a party to the probate action), give to the caveator notice of the commencement of the action and, upon the subsequent entry of a caveat at any time when the action is pending, shall likewise notify the caveator of the existence of the action.40. Effect of caveat etc. upon commencement of probate action. (O. 71 r. 40)
Unless the Registrar by order made on summons otherwise directs–
(a) any caveat in force at the commencement of proceedings by way of citation or motion shall, unless withdrawn pursuant to paragraph (9) of rule 37, remain in force until an application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such proceedings, and upon such application any caveat entered by a party who had notice of the proceedings shall cease to have effect;
(b) any caveat in respect of which an appearance to a warning had been entered shall remain in force until the commencement of a probate action;
(c) the commencement of a probate action shall, whether or not any caveat has been entered, operate to prevent the sealing of a grant (other than a grant under section 19 of the Act) until application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such action, and upon such application any caveat entered by a party who had notice of the action, or by a caveator who was given notice under rule 39, shall cease to have effect.41. Citations. (O. 71 r. 41)
(1) Every citation in one of the forms in Form 176 must issue from the Registry.
(2) Every averment in a citation, and such other information as the Registrar may require, must be verified by an affidavit sworn by the person issuing the citation (in these rules called "the citor") or, if there are two or more citors, by one of them:
Provided that the Registrar may in special circumstances accept an affidavit sworn by the citor’s solicitor.
(3) The citor must enter a caveat before issuing a citation.
(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.
(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.
(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 any time thereafter if no application has been made by the citor under rule 42(5) or 43(2), enter an appearance in Form 175 in the Registry, and must thereafter serve on the citor a copy of it sealed with the seal of the Court.42. Citation to accept or refuse or to take a grant. (O. 71 r. 42)
(1) A citation to accept or refuse a grant may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.
(2) Where power to make a grant to an executor has been reserved, a citation calling on him to accept or refuse a grant may be issued at the instance of the executors who have proved the will or of the executors of the last survivor of deceased executors who have proved.
(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 issued at the instance of any person interested in the estate at any time after the expiration of 6 months from the death of the deceased:
Provided that no citation to take a grant must issue while proceedings as to the validity of the will are pending.
(4) A person cited who is willing to accept or take a grant may apply ex parte by summons to the Registrar for an order for a grant on filing an affidavit showing that he has entered an appearance in Form 175 and that he has now been served by the citor with notice of any application for a grant to himself.
(5) If the time limited for appearance has expired and the person cited has not entered an appearance, the citor may–
(a) in the case of a citation under paragraph (1) apply to the Registrar for an order for a grant to himself;
(b) in the case of citation under paragraph (2), 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 paragraph (3), apply to the Registrar by summons (which must 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 or some other person specified in the summons.(6) An application under paragraph (5) must be supported by an affidavit showing that the citation was duly served and that the person cited has not entered an appearance.
(7) If the person cited has entered an appearance but has not applied for a grant under paragraph (4), or has failed to prosecute his application with reasonable diligence, the citor may–
(a) in the case of a citation under paragraph (1), apply by summons to the Registrar for an order for a grant to himself;
(b) in the case of a citation under paragraph (2), apply by summons 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 subparagraph (b) of paragraph (5);
(c) in the case of a citation under paragraph (3), apply by summons 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 summons,
and the summons must be served on the person cited.43. Citation to propound a will. (O. 71 r. 43)
(1) A citation to propound a will must be directed to the executors named in the will and to all persons interested thereunder, and may be issued at the instance of any citor having an interest contrary to that of the executors or such other persons.
(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 on motion for an order for a grant as if the will were invalid.44. Address for service. (O. 71 r. 44)
All caveats, citations, warnings and appearances must contain an address for service within the jurisdiction.45. Application for order to bring in a will or to attend for examination. (O. 71 r. 45)
An application under section 41 of the Act, for an order requiring a person to bring in a will or to attend for examination must be made to a Judge by summons, which must be served on every such person as aforesaid.46. Applications in respect of nuncupative of copies of wills. (O. 71 r. 46)
(1) An application for an order admitting to proof a nuncupative will, or a will contained in a copy, a completed draft, a reconstruction or other evidence or its contents where the original will is not available, may be made to the Court by summons:
Provided that where a will is not available owing to its being retained in the custody of a foreign Court or official, a duly authenticated copy of the will may be admitted to proof by virtue of section 27 of the Act without any such order as aforesaid.
(2) The application must be supported by affidavit setting out the grounds of the application and by such evidence on affidavit as the applicant can adduce as to–
(a) the due execution of the will;
(b) its existence after the death of the testator; and
(c) the accuracy of the copy of other evidence of the contents of the will,together with any consents in writing to the application given by any persons not under disability who would be prejudiced by the grant.46A. Deposit of wills. (O. 71 r. 46A)
When any will or other testamentary document has been proved or resealed in the High Court the will or document (or, where it is in a foreign language, an official translation thereof) and a copy thereof shall be deposited in such place of safe custody as the Chief Justice may appoint, and the original will or document shall not be taken therefrom or inspected without the order of a Judge.46B. Assistant Registrars to transmit wills to the Registrar. (O. 71 r. 46B)
A District Registrar shall transmit to the Registrars of the State where he exercises jurisdiction the original of any will or testamentary document admitted to probate.46C. Receipt for wills. (O. 71 r. 46C)
Upon any person bringing into the Registry any will or document purporting to be testamentary, the Registrar shall give him a receipt thereof.47. Issue of office copies of will etc. (O. 71 r. 47)
(1) An official copy of the whole or any part of a will, may, on payment of the prescribed fee, be obtained from the Registry.
(2) Where copies are required of original wills or other documents such copies may be photographic copies certified under the hand of the Registrar to be true copies and sealed with the seal of the Court.
(3) Copies, not being photographic copies, of original wills or other documents must be examined against the documents of which they purport to be copies only if so required by the person demanding the copy, and in such case the copy shall be certified under the hand of the Registrar to be a true copy and sealed with the seal of the Court.48. Power to require application to be made by summons. (O. 71 r. 48)
The Registrar may require any application made to him to be brought before him by summons.49. Small estates. (O. 71 r. 49)
(1) In the case of any petition for letters of administration to the estate of a person who died intestate–
(a) if the petition discloses that the assets of the estate include immovable property in any State the Registrars shall before fixing a date for a hearing of the petition require the petitioner to satisfy him that the estate is not a small estate as defined under the Small Estates (Distribution) Act, 1955, and may make such further and other inquiries regarding the value of the estate as he deems proper and unless so satisfied he shall transfer the petition to a Collector having jurisdiction under the Small Estates (Distribution) Act, 1955;
(b) if it appears to the Registrar that proceedings are already pending before a Collector then–
(i) if the Registrar is satisfied that the estate is a small estate he shall transfer the petition to the Collector, but
(ii) if the Registrar is satisfied that the estate is not a small estate he shall so inform the Collector and shall not proceed to hear the petition until the Collector has had an opportunity of referring to him the proceedings before the Collector.(2) When any petition for probate or letters of administration with will annexed is filed in the High Court and it appears to the Registrar that proceedings relating to the same estate are pending before a Collector the Registrar shall request the Collector not to take any further step in the proceedings before him until the validity or otherwise of the alleged will is established and shall furnish to the Collector all necessary particulars regarding the proceedings in the High Court.
(3) In any case in which a caveat has been entered before any petition for probate or letters of administration has been filed in the High Court and the Registrar is satisfied that an application to a Collector is pending relating to the same estate he shall inform the caveator of the application to the Collector and the Collector of the caveat.
(4) In any case in which a petition under the provisions of the Small Estates (Distribution) Act, 1955, is referred to the High Court under the provisions of section 8(7) thereof the Registrar to whom such petition is referred may require the petition to be amended so as to comply with the provisions of these rules and the payment of fees which would have been payable if the petition had been filed in the High Court but in all other respects the petition shall be proceeded with as though it had originally been filed in the High Court.