1. Who Is Entitled To A Copy Of The Will?
The executor named in the will is the person who usually has custody of the original document.
Section 41 of the Probate and Administration Act 1959 states that a person interested may apply to court for an order for the will to be produced however, the Act does not define the term “person interested” nor does it list the parties entitled to a copy,
From case law, the following persons generally have been held to have a legitimate interest in the will:
Beneficiaries named in the will
Executors and substitute executors
Next of kin of the testator
The court has recognised that individuals whose legal rights are affected by the will are entitled to be informed of its contents.
2. The Executor’s Duties and Responsibilities
An executor owes fiduciary duties to the estate and its beneficiaries. These duties include acting in good faith, with transparency, and in the best interests of the estate.
While an executor is not required to immediately distribute assets, they are generally expected to:
Disclose the existence of the will.
Take steps to apply for probate within a reasonable time.
Avoid conduct that obstructs beneficiaries from understanding their rights.
An unreasonable refusal to provide a copy of the will may amount to a breach of fiduciary duty.
3. Requesting For A Copy of the Will
Before escalating the matter, it is often advisable to make a written request to the executor. This request should:
Identify your relationship with the testator.
Explain your interest in the estate.
Politely request a copy of the will or confirmation of its terms.
In many cases, disputes arise from misunderstandings or delays rather than deliberate misconduct.
4. What If Grant Of Probate Has Been Obtained?
Once probate is granted, the will becomes a public document. The interested person may then conduct a search at the High Court registry and apply for a copy of:
The grant of probate.
The will annexed to the grant.
If the executor has already obtained probate but continues to refuse disclosure, you may be able to obtain the will independently through the court.
5. What If Probate Has Not Been Applied For?
If the executor refuses to act or deliberately delays applying for probate, interested parties may take legal steps, including:
Issuing a citation requiring the executor to either apply for probate or renounce their executorship.
Applying to court to be appointed as administrator if the executor fails to act.
Seeking court directions to compel disclosure of the will.
These remedies are designed to prevent estates from being stalled indefinitely.
6. Seek Legal Advice Early
Estate disputes can escalate quickly and often involve family members. Early legal advice can help clarify your rights, assess whether the executor’s conduct is reasonable, and determine the most effective course of action.
A lawyer can also assist with correspondence, court applications, and negotiations to resolve the matter with minimal conflict.
Conclusion
An executor does not have unfettered discretion to withhold a will from beneficiaries or interested parties. If an executor refuses to provide a copy of the will without good reason, Malaysian law offers several remedies to ensure transparency and proper administration of the estate.
If you are facing difficulties obtaining a copy of a will, prompt legal advice can help protect your rights and prevent unnecessary delays in estate administration.
