Muslim Wills State Sabah Enactment 2018

This Enactment comes into operations on a date to be appointed by the Minister by notification in the Gazette. [1 January 2019 G.N.381/2018]

Interpretation

the disease normally resulting in death;

the disease causes the fear of death in the patient’s mind to the extent of affecting the soundness of mind;

shall possess some external signs showing that the disease is a serious disease; and

the disease is suffered continuously for a period of not more than one year;

“person” includes a body of person, corporate or unincorporated;

“person of unsound mind” means a person with mental disorder defined under section 2 of the

Mental Health Act 2001 [Act 615]; and includes any other person of unsound mind incapable of managing himself or his affairs;

“property” includes –

movable property, immovable property or intellectual property;

any benefit profit or interest in any movable property, immovable property or intellectual property;

any right, interest, title or otherwise in connection with movable property, immovable property or intellectual property;

expertise and services having value in accordance with Hukum Syarak;

“qarinah” means fact connected with the other fact in any ways referred to in the Syariah Court

Evidence Enactment 2004 [No. 11 of 2004];

“urf” means a custom or practice recognized by society or a certain class of people whether in the form of word or deed as long as it is not inconsistent with Hukum Syarak;

“wasi” means a person to whom the execution of a will is entrusted including a person appointed as a wasi by the Court; and

“will” means an iqrar of a person made during his life time with respect to his property or benefit thereof, to be carried out for the purposes of charity or for any other purpose permissible by

Hukum Syarak, after his death.

All words and expressions used in this Enactment and not defined in this Enactment but defined in Part 1 of the Interpretation and General Clauses Enactment 1963 [Sabah No. 34 of 1963] shall have the meanings assigned to them in that Part to the extent that such meanings do not conflict with Hukum Syarak.

For the avoidance of doubt as to the identity or interpretation of the words and expressions used in this Enactment that are listed in the First Schedule, reference may be made to the Arabic

Script for those words and expressions as shown against them in the schedule.

A will may be made orally or in writing and, if the testator is incapable of either, a will may be made by an intelligible gesture on his part that can be understood.

A will made orally or by gesture shall be made before two witnesses who are competent to be accepted as witnesses according to Hukum Syarak.

A written will shall be made in the form set out in the Second Schedule.

Proof of will

Subject to subsection (2), no claim regarding the validity of a will after the death of the testator shall be accepted by the Court unless it is supported by documents written or signed by the testator.

Where there exists a substantial obstacle to obstruct the production of the documentary evidence mentioned in subsection (1), a will may be established by the oral testimony of two witnesses.

Conditional will

A will may be made absolute or subject to a condition.

A will which is subject to a condition which seeks to regulate either the manner in which the property or benefit thereof shall be enjoyed or the general conduct or activities of the beneficiary, shall be valid if the condition is in itself valid according to Hukum Syarak.

A condition attached to a will shall be valid and enforceable if it is one in which there is some legal benefit to the testator or to the beneficiary or to some other person, and which is neither forbidden nor contrary to the purpose of Syariah.

Competency of testator

A testator shall be a person who –

A will of a person who is not competent to be a testator according to Hukum Syarak, is not valid except with the consent and authorization of the Court.

Where a testator is ill at the time of making of the will, he shall be of sound mind, of good memory and understands the act of making will.

Where a testator is in marad al maut, his bequest shall not exceed one-third of his property and if the bequest exceeds one-third of his property, the excess shall be given effect to only with the consent of all the heirs.

Conditions of beneficiary

who is known;

who is competent to own the bequeathed property; and

if specified, he shall be in existence at the time of the execution of the will, and if unspecified, it is not necessary for such beneficiary to be in existence at the time of the execution of the will or at the time of the testator’s death.

Bequest to places of worship or other institutions

The subject matter of a will shall be –

The subject matter of a will shall be permissible and not a subject which is prohibited and inconsistent with Hukum Syarak.

Bequest on benefit

A will may be made by –

Subject to subsection 26(2), a person may specify the share of his heirs in the estate and if the share of one of the heirs so specified is in excess of his share in the estate, such excess shall be deemed as will.

the testator becomes a person of unsound mind and dies in that state;

the beneficiary dies before the testator’s death;

the specific subject or benefit of the will is destroyed before the testator’s death; or

the testator revokes the will.

A will of a person prohibited to administer his property

A will may be revoked either wholly or in part by –

A will shall be deemed to be revoked –

the denial of the will by another person;

the alteration made to the form of bequeathed property; or

the testator did any act or adding something to the bequeathed property, where such act or addition is not independent by itself, unless there is proof either by qarinah or urf, to establish that by doing such an act or addition, he had intended to revoke his will.

A will shall be enforceable when it is accepted by express or implied acceptance by the beneficiary after the testator’s death.

Where the beneficiary is a minor in accordance with Hukum Syarak or a person who is prohibited from administering his property, his acceptance or rejection shall be exercised by his guardian of property.

Where the beneficiary is an unborn child, its acceptance or rejection shall be exercised by his guardian of property provided that the unborn child is born alive.

Where the beneficiary is a body corporate, its acceptance or rejection shall be exercised by the legal representative of such body corporate.

Where a will has been made to an unincorporated group of persons, its acceptance or rejection is not required, and such will shall be distributed to not less than three persons of the group.

Where a beneficiary dies without having accepted or rejected the will, the option to accept or reject the will shall be passed to the beneficiary’s heirs.

Time to accept or reject will

Acceptance or rejection of a will may be made within thirty days after a beneficiary comes to know about a testator’s death and the existence of such will provided that there is no reasonable excuse on the part of the beneficiary which causes him to delay the acceptance or rejection of the will.

An heir of a testator may make an application to the Court to obtain an order directing a beneficiary to express his acceptance or rejection of a will.

Acceptance of part of will

Where a beneficiary accepts part of the will and rejects the other part, such acceptance shall be valid to the extent of the part accepted and invalid to the extent of the part rejected.

Where some of the beneficiaries accept the will and some others reject it, such will shall be valid in respect of those who have accepted it and invalid in respect of those who have rejected it.

Rejection of will before or after the death of the testator

No will shall be invalid if the rejection is made by the beneficiary before the testator’s death.

Where a beneficiary rejects the will wholly or in part after the testator’s death and at such time the beneficiary has not accepted it, the rejection is valid to the extent and in respect of the part rejected.

Where a beneficiary has accepted the will after the testator’s death and thereafter rejects such will wholly or in part, the rejection is not valid.

Acceptance of the bequeathed property

Subject to sections 17 and 18, where a beneficiary is in existence at the time of a testator’s death, he shall be entitled to the bequest from the time of the death provided that no particular time, after such death, is fixed in the bequest.

All profits of and additions to the bequeathed property from the time it has been taken in possession by the beneficiary shall not be considered as part of the bequest and any expenses due to the bequest during such period shall be borne by the beneficiary.

A will may be made to a yet-to-exist beneficiary or to a group of a specific number of both existing and non-existing beneficiaries.

Where any of the beneficiary mentioned in subsection (1) does not exist at the time of the testator’s death, his heirs shall be entitled to the property or benefit thereof.

Where there is only one person from a few beneficiaries existing at the time of the testator’s death or thereafter, the property shall be given to such existing person until the remaining beneficiaries come forward, and thereon, the property shall be divided among them and, if one of them dies, the deceased’s share shall become part of his estate.

Where there is only one beneficiary, he shall be entitled to the entire property unless there is evidence to establish that the testator had intended to bequeath the property to a few beneficiaries, and in such circumstances, the existing beneficiary shall be given only his share and the remaining share shall be given to the other beneficiaries.

Where a will is made in stages, upon the testator’s death, the bequest shall be given to the first group of recipients and so on until all properties have been exhausted and such bequest shall become part of the testator’s estate if the groups of recipients are no more in existence, unless there is evidence to establish that it has been bequeathed to other beneficiaries.

Will to certain persons

Subject to section 22, where a bequest is made to a limited number of persons, but did not specify them by names and some of them are not competent to be beneficiaries at the time of the testator’s death, the property shall be distributed to the remaining rightful beneficiaries.

Where a will is a joint one between a specified person and a group or organization, or between a group and an organization, or between all of them, every specified person and every individual of the limited group, and every unlimited organization shall have a share in the will.

Where a will is made to a person, group of persons or a specified party is invalid, the share of the person, group of persons or specified party in the bequeathed property shall become the testator’s estate.

Will to an unborn child

A will to an unborn child shall be valid in the following circumstances –

Subject to subsection (1), a will may be made to an unborn child of another person if such unborn child is of the legitimate descendant child of that other person in accordance with Hukum

Syarak.

The property of the unborn child shall be administered by his guardian of property or wasi, as the case may be, until he is born and thereafter such property shall be given to him when he is competent to receive it.

Will to two or more unborn children, etc.

the bequest shall be equally divided among them unless otherwise provided in the will;

where one of them is a stillborn, the surviving one shall be entitled to the entire bequest, unless otherwise provided in the will; or

where any one of the babies dies after birth and if the will is related to the corpus of the property, his share shall pass on to his heirs, and in the case of the will being of the benefit, his share, shall pass to the testator’s heirs.

Where a will is made to a person who is not an heir within the limit of one-third of the testator’s net estate after the payment of all his debts, the will shall be given effect to without the consent of the heirs.

A will made to an heir in excess of one-third shall not given effect to unless the heirs consent to it after a testator’s death.

A will made by an indebted person shall take effect only to the extent of his remaining estate after the payment of all his debts.

Where a person dies without making any will to his grandchildren through his son who has predeceased him or dies with him at the same time, then his grandchildren shall be entitled to the will of one-third of his estate and, if such grandchildren is given less than one-third, his share shall be executed in accordance with the provisions of the obligatory will provided for under this section.

The obligatory will for the grandchildren in subsection (1) shall be to the extent of share in the estate of his deceased grandfather, presuming that the father died after the death of the grandfather provided that, the will shall not exceed one-third of the deceased’s estate.

The grandchildren shall not be entitled to the will if they had inherited from their grandfather or grandmother, as the case may be, or if the grandfather or grandmother had, during his or her lifetime and without having received any consideration, made a will to them or given them a property equivalent to what they would have been entitled to according to the obligatory will provided that, if the will is less than what they would have been entitled, it shall be increased accordingly and, if it is more, the excess shall be treated as voluntary will which is subject to the consent of the heirs.

Any provision or interpretation of the provisions under this Enactment which is inconsistent with Hukum Syarak shall, to the extent of the inconsistency, be void.

In the event of a lacuna or if any matter is not expressly provided for in this Enactment, the Court shall apply Hukum Syarak.

Power to make regulations

The Majlis, with the approval of Yang di-Pertua Negeri, may by notification in the

Gazette, make regulations as may be necessary or expedient for the better carrying into effect the provisions of this Enactment.

Without prejudice to the generality of subsection (1), Majlis may make regulations for –