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QUESTION 5

(i)

What is the importance of the citation procedure as set out in O.71 of the
ROC2012?

Empower the executor to refuse or accept the grant of representation. However, if a


person is entitled to extract the grant but the executor refuses to do so, then the citor can
force the executor to extract the grant.

Where an executor has intermeddled in the estate of the deceased but has not taken out
grant of probate within six months from the death of the testator, he may be cited to take
probate by any person interested in the estate.

Citation can be served as a tool to prove the will. When a person believes there is a valid
will, he or she can cite the executor and beneficiaries to propound the Will.

(ii) Outline the necessary steps required to administer the estates of the following
Deceased persons up to the stage of distribution of their respective estates:(a) Samy died intestate in June 2014 leaving a widow and 2 infant children. Samys
estate contains land and movables. The gross value of the estate is RM1 million. His
debts amount to RM500,000/When a person dies intestate, the matter of distribution of estate is governed under the
Distribution Act 1958. If the widow and the 2 infant children left by Samy are the legal
beneficiaries, then they are entitled to the estate of Samy and hence they need to apply for Letter
of Administration.
The widow and the 2 infant children have to file the petition for Letter of Administration. If
there are other beneficiaries, they must sign a Renunciation of Administration letter to renounce
their rights to petition. Those who refuse to sign will be served a notice when the petition comes
up for hearing. The other beneficiaries may also raise objections to the petition and by doing so,
the petition will then be proceeded as a contentious one. At the hearing, those beneficiaries who
fail to appear will be deemed to have renounced their rights to the administration.
One or two administrator(s) will be appointed by the Court and the Administrator will then
distribute the net assets of Samy only after the settlement of his debts of RM500,000. Two
guarantors are needed and the appointment of the Administrator must get full consent from the
legal beneficiaries. Since there are two infant childfren left by Samy in the current case, two
administrators are then required before application to High Court for the issuance of Letter of
Administration is made. However, since there is a widow being left, it is likely that guardian will
not be appointed since the widow or the mother can take care of the infant children.

Whether the amount of the bond to be reduced or the number of sureties to be dispensed, it
is at the courts discretion. Where the Administrator ended up absconding the estate, the sureties
will have to bear the responsibilities of refunding the loss.
(b) Peter died in May 2013, leaving behind a valid Will. Kary is willing and able to
prove the will. The gross value of Peters estate is RM600,000/ with immovable
property-. However, Peters Will does not have an attestation clause and the
witnesses of the Will have predeceased him.
Since there is a valid Will left by Peter, the proper procedure would be to apply for the
Grant of Probate after the death of Peter. The Applicant who is the executor, must have his
possession of death certificate and a copy of the will certified with true copy for both of the
documents. The applicant or the petitioner needs to apply for the Letter of Probate by way of
Form 168 under O.71 r.5 (1) of the Rules of Court 2012. Following on, the Applicant must have
sworn for the affidavit.
Under O.71 r.31, it stated that if any person has prior right to the Will, he must renounce
his right to extract the probate and such renunciation must be filed with Form 169.
In the realm of the current case, it is disputed that he Will does not have an attestation
clause. Therefore, affidavit of due execution must be filed for the validation of the will. Other
than that, since the witnesses of the Will have predeceased Peter, it is alleged that anyone who
was present at the time the Testator signed the Will, could affirm the affidavit. Based on the
current case, it is arguable that Kary who is willing and able to prove the will could affirm the
affidavit. Under O.71 r(1) of the Rules of Court 2012, it further provides that if there is no such
person existed, it is therefore contended that anyone who can recognize the testators signature,
could affirm the affidavit.
A hearing date would then be set before the Registrar and the Registrar has the right in
enquiring the matters of the Will before granting the petition of probate. Only then the Executor
can extract the probate from the Registry hence collecting all the available assets.