What is Probate?
Probate is the legal process of validating a person’s will after their death. This involves proving the authenticity and validity of the will in court. The probate process is crucial for ensuring that the executor(s) named in the will can carry out the Testator’s intentions. The grant of probate, obtained through court proceedings (a.k.a. probate proceedings), validates the appointment of the executor(s) and their execution of the will.
To commence probate proceedings, when a person with a will passes away, the proving executor named in the will appoints a lawyer to file an application for a grant of probate in the High Court. This should be done within three years of the testator’s death, or else reasons should be provided for any delay. If no executor is named or if the named executor is unable or unwilling to act, the court will appoint an administrator.
The probate application involves a hearing where the executor provides identification, the original will (if available), and the death certificate of the Testator. The Registrar examines these documents and determines the validity of the will. If satisfied, the court issues an order for the Grant of Probate.
In the event that the Registrar is not satisfied that the Will meets the requirements of the Wills Act, the application for Grant of Probate will be dismissed or referred to court.
Contentious vs Non-Contentious Probate Proceedings
Probate proceedings can be non-contentious or contentious. Non-contentious proceedings occur when there are no disputes over the will. Contentious probate proceedings involve disputes and are initiated through court actions, often commencing by entering a caveat or issuing a citation.
Contentious Probate Proceedings
Probate action may be commenced by persons entering caveat or by persons issuing a citation. In some instances, probate action may be commenced by the applicant for grant of probate where he anticipates that his proving of the Will may be challenged.
A caveat may be lodged by a person interested in the estate who does not wish for a grant of probate to be made without notice to him. A caveat is lodged by filing the caveat form in the Registry and has the effect of preventing the extraction of a grant of probate for the duration of 6 months from the date of filing.
After lodging a caveat, a citation may be issued by a person interested in the estate requiring the person cited to respond accordingly. A citation may be issued for the following purposes:
- Citation to accept or refuse to take a grant – where the person who should apply for a grant delays or refuses to act, another person having a right to the estate may issue a citation to him to accept or refuse the grant;
- Citation to take probate – where the executor has began to handle the affairs of the estate but failed to apply for a grant within 6 months of the death of the Testator, a person interested in the estate may cite him to take probate;
- Citation to propound (produce) a will – before grant is taken, where a person interested in the estate believes that the will is invalid, he may cite the executors and beneficiaries to produce it.
- In a situation where the grant of probate has already been extracted, a person interested in the estate may commence an action for the revocation of the grant.
Conclusion
In summary, understanding the difference between contentious and non-contentious probate is crucial in navigating the estate administration process in Malaysia.
While non-contentious probate generally involves a straightforward application where there is no dispute over the will, contentious probate arises when disagreements need to be resolved through the courts.
By seeking timely legal advice, you can protect your interests, ensure compliance with legal requirements, and minimise delays or conflicts in carrying out a loved one’s final wishes.
