The Causes of Unclaimed, Late Claimed or Distributed ... - ipedr

such notification is given, and no legal heir survives the deceased, the estate can remain unclaimed
considering the ambiguity in law and the lack of clear database.
2.3. Lengthy Process
The empowerment of two courts under substantive law and the procedures to be followed may be the
reason for unclaimed estates simply because the process is too lengthy and costly. The High Court has been
empowered to grant a Probate in testate cases under Section 3 of Probate and Administration Act 1959, and
Letter of Administration in intestate cases according to Section 18 of Probate and Administration Act 1959.
The period of getting a Letter of Administration is longer than Probate for testate estates. It may take up to
four years to settle the case. Additionally, the Shariah Court has been vested with jurisdiction to ascertain the
eligible heirs and their shares and to issue the certificate of farai’d to that effect [5]. Application to claim the
estate involves costs; this may play significant role in making the beneficiaries of the estate not to claim it,
especially when the value of the subject property after distribution is relatively small. In cases where an
application is made by the beneficiaries, the time between application and final settlement of the case will be
long and therefore the distribution of the estate will also be long.
2.4. Lack of Cooperation and/or Contact Between Various Parties
Occasionally, the donor and trustee might not be in constant contact and therefore the possibility of
claiming and distributing the estates will be remote. The trustee may come to know about the demise of the
donor after a year or so, and thereafter he may initiate the process of claiming the estate for the beneficiaries.
In this case, the claim might be made late, which may also result in delayed distribution. Further, the
distribution of estates could be delayed due to the lack of contact and cooperation between the beneficiaries.
They may not wish to attend the hearing or no decision could be made by the relevant agency because there
is dispute between parties. There might also be cases when a trustee does not discharge his responsibility and
does not inform the beneficiaries about the estate or about the existence of declaration of will, gift or trust.
Here, the estate may remain unclaimed.
2.5. Lack of Cohesive Mechanism
The lack of necessary database on the movable and immovable estates of the deceased owner may make
the estates unclaimable. There is no link between the Department of National Registration and other relevant
agencies such as Land Office, Courts, Amanah Raya Berhad, banks and others in order to access the required
databases on dead persons, the identification cards and certificate of birth, certificate of marriage, grant of
land, current land taxation receipt and movable estates statements. Currently all information are obtained by
individuals or lawyer through application. There is no single body where all the above information can be
accessed, claims can be speedily processed, or adjudicated. Therefore, the distribution of an estate will be
slow, expensive, discouraging and subject to a family tussle [9] based on farai’d, will, gift, and trust.
2.6. Attitude
Majority of Malaysian Muslims are less sensitive to know their rights to inheritance [9], how and where
to claim, as well as they might be less sensitive as to why they should apply. Indeed, the level of
consciousness about estate planning is still lower. Though, the importance of having a will has been stressed
upon, especially through banks, co-operatives and related bodies, educational and promotional programmers
and also electronic media [4], it is presumed that such may not necessarily prevent the delayed in the
distribution of estates.
The distribution of estate may also be delayed by a claim made by non-Muslim relative of a deceased
Muslim person. As the law is clear in Islam, and the convert knowingly excludes his non-Muslim family
members there should remain no question about the rights of the non-Muslims to inherit from the said estate.
Yet, claims are made by non-Muslims to the properties of their deceased kin. In the case of Federal Islamic
Religious Council v Lim Ee Seng (2000), the High Court of Malaya held that a former wife’s claim to her
former husband properties is dismissed because he had converted to Islam and she has no rights under
Islamic inheritance law. In the above case, the dispute by the non-Muslim family member will cause further
delay and the distribution can take place only after the court makes a decision about it.
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