Introduction
Losing a loved one is never easy, and it often comes with the responsibility of managing their assets and estate. If you are dealing with the disposal and distribution of a loved one’s estate, only to discover that they have left behind property in another country, you will have to reseal the Grant of Probate or Letters of Administration you have obtained beforehand in that country too.
Here, we will look at the case of resealing a Grant of Probate or Letters of Administration issued by foreign courts in Malaysia.
What Is Resealing?
It is important to understand that obtaining a Grant of Probate or Letters of Administration is a legal process issued by the court, and its authority is limited to the jurisdiction of the country where it is granted.
In the case of Malaysia, a Grant of Probate or Letters of Administration only allows the appointed personal representatives to manage the deceased’s estate within Malaysia. The situation becomes complex when a foreigner passes away and has assets in multiple countries, and that’s where the resealing of a Grant of Probate or Letters of Administration comes into play.
Resealing is a legal process to allow a foreign-issued legal document from another country to be valid in Malaysia. This is important because a Grant of Probate or Letters of Administration, which allow the management of the deceased’s estate, usually have authority only within the country they were granted. When a foreigner passes away with assets in Malaysia or in another country, the need for resealing arises.
The primary reason for resealing is to allow the appointed personal representatives (such as the Administrator or Executor) is to manage the deceased’s estate in Malaysia and also to enforce the deceased’s will within Malaysian jurisdiction without the need for a completely new process (i.e. applying for Letters of Administration afresh under Order 71 of the Rules of Court 2012). This saves time, effort and cost.
Section 52 of the Probate and Administration Act 1959
In Malaysia, Section 52 of the Probate and Administration Act 1959 allows the Malaysian courts to reseal Grants of Probate and Letters of Administration issued by the courts in any other Commonwealth country. This means if the Grant of Probate or Letters of Administration for the deceased’s estate was issued by the courts of a Commonwealth country like Singapore, Brunei, or Australia, it can be resealed in Malaysia.
How do I reseal a Grant?
In order to reseal a grant, it is crucial to consider specific requirements. First and foremost, at the time of the deceased’s passing, they must have been domiciled within the jurisdiction of the court that issued the original grant. “Domicile” refers to the country where a person has his permanent residence.
In the absence of any change of domicile from the country of origin to Malaysia, the court will assume that the domicile of the testator is still his country of origin. This domicile requirement is a key factor in determining eligibility for resealing because the Grant can only be resealed when it was issued by the court in the same country where the deceased domiciled. For example, if the deceased was domiciled in Australia, but the Grant of Probate or Letters of Administration was given by the Singapore Courts, the Malaysian courts will be reluctant to allow the Grant to be resealed here.
Non-Commonwealth Countries
Section 52 of the Probate and Administration Act 1959 only applies when the Grant is granted by a Commonwealth country. Therefore, if an individual from a non-Commonwealth country (for instance, a Japanese citizen) passes away leaving behind assets in Malaysia, his family or representatives will not have the option to reseal the Grant issued in Japan; instead, they will be forced to under a fresh application for a Grant of Probate or Letters of Administration in the Malaysian courts.
The Application Process for Resealing
If the deceased was from a Commonwealth country, and his personal representatives have obtained the Grant from the court within the jurisdiction where the deceased was domiciled, they can apply to reseal the Grant. The documents needed for this application include:
- A Certified True Copy (CTC) of the Death Certificate
- A CTC of the IC/Passport of the personal representative(s) and beneficiaries
- A CTC of the Grant of Probate by the Court and the Last Will of the Deceased
- A CTC of the Letter of Representation by the Court (if the Deceased died intestate)
- Details of 2 sureties (if the Deceased died intestate)
- A list of assets in Malaysia
- A list of debts and liabilities in Malaysia
- A list of the beneficiaries
Conclusion
Resealing a Grant of Probate or Letter of Administration is a important step in dealing with the estate of a Deceased foreigner who left behind assets in Malaysia. However, it is essential to bear in mind the crucial requirements, such as determining domicile and the origin of the Grant. If these requirements are not met, the family or representatives will needs to apply for a fresh Grant in Malaysia, incurring most costs and time.
This article was written by Caleb Goh and Teo Qiao Er, our intern from Marcus Tan & Co’s Litigation Department