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Question:

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“Hi Lawyer Yeo, I have a few legal questions regarding a will matter in Malaysia and would like to seek your legal opinion.

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My father recently passed away and left a will to me. After reading his will, I found that he had appointed a local trust company as the executor with me as the sole beneficiary of his estate. The will was witnessed by two individuals unknown to me, whom I believe to be employees or agents of the trust company.

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When I contacted the trust company for further details, I was informed that both witnesses were indeed their employees, but one of them had resigned few years ago and could no longer be located. I was also informed that, should I engage the trust company to act as the executor, they would charge an administration fee of about RM10,000 per annum from my father’s estate!!

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Considering that my father’s estate is worth less than RM200,000, I find the administration fee imposed by the trust company is quite exorbitant. I am also concerned that if the administration process is prolonged, let’s say takes about 2-3 years to complete, the accumulated administration fees plus legal fees may leave little or nothing for me to inherit.

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In light of the circumstances, I would like to know:

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• Whether my father’s will remains valid if one of the witnesses cannot be located; and
• Whether I have the right to replace the executor, or what other steps may be taken to safeguard my interests.

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I would greatly appreciate your legal advice in this matter. Thank you.”

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Answer:

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1.     Under the Wills Act 1959, a will is valid as long as it is signed by the testator in the presence of two witnesses. The fact that one of the witnesses later cannot be found/ unreachable does not affect the validity of the will.

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2.   In practice, when a witness cannot be found the probate lawyer acting for the executor would make an attempt to contact the witness, typically by issuing a letter to the last known address stated in the will or the witness’s identity card.

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3.     If there is still no response from the said witness, all correspondence & records of attempted contact will be submitted to the court as evidence to apply for dispensation of filing the witness’s affidavit, which is ordinarily one of the documents required in an application for a Grant of Probate in Malaysia.

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4.    As long as the lawyer can demonstrate that reasonable efforts were made to contact the witness, the court will generally allow such dispensation. If the witness has passed away, the probate lawyer would submit the relevant death certificate oinstead to show that it is impossible to file the affidavit of the deceased witness. In either case, the will remains valid and the court will allow the dispensation.

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5.    With regard to executor’s fees, Malaysian law does not expressly prohibit executors from charging an administration fee. Instead, Section 43 of the Probate and Administration Act 1959 expressly permits an executor, with the sanction of the court, to claim a commission not exceeding five per cent (5%) of the total value of the estate. Although the provision refers to “commission” rather than “administration fees,” some trust companies rely on this section as a basis to justify their charges.

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6.    In practice, however, the fees are usually determined by the contractual terms agreed between the deceased and the trust company. Where the will or a related agreement executed by the deceased expressly stipulates the fees payable, such terms will generally be enforceable under Malaysian contract law.

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7.     If the beneficiary takes the view that the will is straightforward and involves only a few beneficiaries, he or she may request the appointed executor to renounce his role voluntarily. Should the executor agree, the probate lawyer can prepare an Affidavit of Renunciation to be executed by the executor. The beneficiary may then apply to the court for a Grant of Letters of Administration with Will Annexed, so that he can be appointed as administrator to administer the estate himself.

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8.     However, if the trust company insists on acting as executor and has neither acted negligently nor breached its fiduciary duties, the beneficiary has no legal right to remove it, as doing so would contravene the express wishes of the deceased as set out in the will.

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9.     In such circumstances, the beneficiary should maintain regular written communication with the executor or its solicitors, whether by letter or email, to monitor the progress of the administration and to keep a proper record of all correspondence.

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10.    If the beneficiary subsequently believes that there is a delay on the part of the executor to charge unnecessary administration fees, these records can be used as evidence. The beneficiary may then instruct a lawyer to issue a formal letter of demand. If the executor still fails to act promptly, an application may be filed under Order 73 Rule 34 of the Rules of Court 2012 in the High Court for the removal of the executor and replacement.
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11.     Alternatively, the affected beneficiary may also apply to the court to compel the executor to submit a full inventory and statement of accounts, and to provide a clear timetable for distribution. The court has the power to review the charges under the principle of quantum meruit (reasonable remuneration), to assess whether the administration chargeable by the executor is proportionate to the actual services rendered.

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12.    While initiating legal action will necessarily involve further costs for the beneficiary, in cases of serious delay, mismanagement, or misconduct, it may be the only practical means of mitigating losses. By seeking the directions of the court, the executor can be compelled to fulfil its duties properly or be replaced, thereby avoiding further delay and unnecessary expenses suffered by the beneficiary.

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This wraps up our legal explanation on legal issues in relation to estate administration and wills in Malaysia. If you are facing a similar situation and would like legal assistance, feel free to reach out to us on WhatsApp: https://wa.link/q3kmv5

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