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eported by media is evidence, which suggests a need for further review. This failure could be because not all or the right causes of such accumulation were identified. 2. Problems of Muslim Estates This paper suggests that there are six main possible causes of unclaimed or delayed distribution of estates. This needs to be tackled in order to prevent further accumulation of unclaimed estates. The causes of unclaimed estate can be legal and administrative constraints. They are: (1) the complexity of law; (2) the lack of knowledge; (3) lengthy process; (4) the lack of cooperation and/or contact between various parties; (5) the lack of a cohesive mechanism; and (6) attitude that needs to be discovered. 2.1. Complexity of Law There has been a number of cases of estates remaining unclaimed because of no application has been made by the heirs. This may be so for several reasons caused by the law. As result of classification of estates into large and small, their distribution falls within jurisdiction of two courts and two administrative agencies. According to Section 25 of the Civil Law Act 1956, the administration of Muslim’s estate shall be in accordance with the Islamic law. But Article 74 (1) of Malaysian Federal Constitution read with Ninth Schedule Paragraph 4 (e) (i), provides that the Civil High Court has the jurisdiction over matters relating to succession, testate and intestate, probate and letters of administration. Thus, in light of Article 121A Muslims have to go to Shariah and Civil Courts for claiming the estate of a deceased person. At the same time, Section 17 (1) of Public Trust Corporation Act 1995 (Act 532) gives the power to ARB to dispose movable properties whether testate or intestate which is less than RM 2 million, while the claimant can go to the Land Office for immovable properties which is not exceeding RM 2 million. Besides, Section 8 (1) of Small Estates (Distribution) Act 1955 (Act 98) prescribes ARB has the jurisdiction in small estate distribution included movable and immovable properties even though in the absent of a will. This section states that estates of Muslims, movable or immovable, exceeding RM 2 million comes within the powers of High Court. Section 77 of Probate and Administration Act 1959 (Revised-1972) (Act 97) enjoins that an executor has unlimited power to distribute estates of a deceased person but under this Act the executor has to apply for letter of execution from Civil High Court. The transmission process of estate, which does not exceed RM 2 million, for example in Land Office, can begin without lawyers going to Court. It may take five and a half months [10]. The existence of various regulations and the involvement of several bodies in the distribution of the estates make the law and the process of claiming estates complex, which has led to overlapping powers and the responsibilities of these entities. An heir of the deceased may be puzzled by the complexity of law and procedures, which may affect his decision to claim the estate. Even if he makes a claim, the procedures of claiming estates may probably be delayed. This may be true if he made his application before a wrong agency. No matter where the application is made, beneficiaries need to produce the certificate of death by the Department of National Registration. Only a specific group of beneficiaries can apply for such a certificate. In the absence of such a group of beneficiaries a lawyer needs to be appointed. Upon production of certificate of death the beneficiaries then can claim the estate. They are given three options to settle the estate distribution under Section 15 (1) of Small Estates (Distribution) Act 1955, that is: (i) distribution under farai’d system; (ii) distribution of estate by agreement of all beneficiaries without applying the farai’d system; and (iii) all beneficiaries agree to distribute the estates to the selected beneficiaries or some beneficiaries withdraw from receiving the estates. Where first option is taken, a certificate of farai’d from Shariah High Court need to be obtained. There might be cases where the subject estate may not be distributed for several generations. It may then take a month to clear the case, considering the complexity of the case and lack of experts. All of the above makes it clear that certain beneficiaries may not claim estate of the deceased due to such complexity and reluctance to appoint a lawyer. Yet, if they do make claim, it may take them long time to do so, and once they apply the process may be lengthy for the reasons stated above. A delayed distribution of estates could occur in term of execution of will. Will is used for giving a portion of the estate to those who are not included in the list of heirs under farai’d system, either for 441
individual such as adopted child, orphaned grandchild, foster parents, non-Muslim family member, etc. or for institutions including mosque, orphanage, charitable organization, hospital, and others. A fatwa dated 20 th of September 1973 relating to the nominees in insurance policies, Tabung Haji and EPF savings [12], make these entities to be the executors of the will of the deceased distribute all the said properties on the deserving heirs under the farai’d system. Under this fatwa the nomination in the insurance policy does not amount to will and the nominated person can be considered as the executor of the estate. Disputes over the estate may occur among the heirs if the nominee insists on being the beneficiary/legatee of the insurance policies, Tabung Haji and EPF savings [12]. Problem may also arise when there exists a joint account with the deceased. In the absence of will or survivorship clause written in the joint account agreement [8] the assets will be divided according to farai’d under the above fatwa. The distribution of estates could be delayed by enforcing an implied or constructive will. An implied will refers to an ineffective and problematic declaration of gift (hibah), which results into will. In Re Ismail bin Rentah (1939) 230, the deceased owner had named his daughter as nominee for shares and all benefits from his company after the deceased’s death. After he died, the Registrar made an order to distribute all the properties of the deceased to the family heirs according to farai’d not a gift to her. The Court held that it cannot be considered as gift because no delivery of possession has been made from the donor to the donee at the time. It only can be called gift on deathbed, which can be treated as will under the law. In another case, Rosmawati binti Sharibun & Anothers (2002) 4 AMR 4913, the issue was whether or not the deceased and his third wife’s money which were in two joint accounts could be considered as gift. It was held that the joint account did not amount to gift because the third wife did not have exclusive control over the account as she has to obtain the signature of her husband during the lifetime of the husband. In this case, no exclusive ownership has been given because the qabd (taking possession) in gift is not being fulfilled, so it cannot be a valid gift but a will. The lack of claim may be due the family structure or the status of some members of the family. When only the adopted children survive the deceased they cannot claim the estate, unless there is a will made in their favour not exceeding 1/3 of the whole estate. Additionally, secret polygamy case can be another reason for unclaimed estates. For example, if there has been a double tragedy involving husband and first wife, and they have no children, but the husband leaves behind a secret or unregistered second wife. Unfortunately, the second wife may not be able to claim the deceased’s estates if their marriage is not registered, and there exists no legal documents verifying the marriage. Where the dead husband leaves behind minor children, they will have rights to the estates of their father. Under law, a guardian should be appointed to administer the deceased’s estates for their benefit since they are unable to claim due to their age. However, the claim may be delayed if the guardian did not claim for them to obtain the estates in time. 2.2. Lack of Knowledge Both substantive and procedural law is complex and difficult to be understood by layman. The lack of knowledge of the deceased and the beneficiary of his estate might cause an estate unclaimed, lately claimed and delayed distribution. Many Muslims still do not make will and gift to distribute their property because they think the farai’d system is the only way whereby their properties could be transmitted to the heirs. This may result in delayed claims and distribution of the estate. The beneficiary of the estate, one related to the deceased by blood or cohabitation as well as the baitulmal, may not know the law, the property of the deceased [9], the making of will or hibah by the deceased, and whether or not he/she is entitled to the estate or a part thereof. Similarly, the lack of knowledge and understanding of law, both Shariah and Civil, legal documents, and the involvement of varies agencies may lead to no claim, late claim or delayed distribution of estate. A beneficiary may be unwilling to initiate the process of distribution of the estate because he does not know whether or not the estate can be distributed under fara’id, will or trust. Beneficiaries, in some cases may discover new list of properties, in cash or otherwise, after the application has been made. This may contribute to late claims or delayed distribution of estates. In the case of intestate estate, the law prescribes its distribution among the heirs and baitulmal. The baitulmal may not know about the estate unless an application for fara’id certificate is made or notified by an agency about the unclaimed estates. Where no 442
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