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

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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. 443
2.7. Conclusion Irrespective of whether or not a person passes away testate or intestate, due to the above six reasons, his estate is prone to being unclaimed, claimed but not sooner as should be, and distributed very late. In any event, it impedes the economics of individual, industry and government. The latest preventive measures introduced by government and undertaken by various bodies seem to be not as effective as one could wish. The accumulation of unclaimed RM 40 billion and so, as publicised by media, strongly suggest the above conclusion. Therefore, the reform of the law and procedure is needed. For this, a study is needed in order to overcome the problems of complexity of law, lengthy and costly process, and non-cohesive mechanism, lack of knowledge and cooperation, and attitude of various parties. 3. Acknowledgements The author would like to thank the anonymous reviewers for useful comments. Zamalah/Institutional Scholarship provided by Universiti Teknologi Malaysia and the Ministry of Higher Education of Malaysia finances the work. 4. References [1] Civil Law Act, 1956 (Act 67), 2006. The Commissioner of Law Revision Malaysia in Collaboration with Malayan Law Journal Sdn Bhd and Percetakan Nasional Malaysia Berhad. www.lawnet.com.my [2] Federal Constitution, 2006. The Commissioner of Law Revision Malaysia in Collaboration with Percetakan Nasional Malaysia Bhd. www.lawnet.com.my [3] Omar, R. (2009). Wasiat: Tool for Islamic Estate Planning as Practiced at Amanah Raya Berhad. IFWMI Intellectual Discussion on Islamic Finance and Wealth Management. Presented Paper. Islamic Finance and Wealth Management Institute (IFWMI). Universiti Sains Islam Malaysia. [4] Patrick Sennyah (2007). RM 40b Waiting To Be Given To Heirs. New Sunday Times, pp: 3. [5] Probate and Administration Act 1959 (Revised-1972) (Act 97), 2006. The Commissioner of Law Revision Malaysia In Collaboration With Percetakan Nasional Malaysia Bhd www.lawnet.com.my [6] Public Trust Corporation Act 1995 (Act 532), 2006. The Commissioner of Law Revision Malaysia In Collaboration With Percetakan Nasional Malaysia Bhd. www.lawnet.com.my [7] Salleh Buang (2010). Instrumen Perancangan Harta Pusaka Islam: Amanah dan Hibah. Convention of Islamic Small Estate Planning System 2010. Institut Kefahaman Islam Malaysia (IKIM). [8] Shahanaaz Habib (2010). When The Money Is Tied Down. www.wasiat4u.com [9] Siti Mashitoh binti Mahamood (2008). Isu-isu Berbangkit Dalam Pengurusan Baitulmal Di Malaysia: Pemakaian Akta Wang Tak Dituntut 1965. Jurnal Pengurusan JAWHAR. Vol. 2, No. 1, 2008, pp: 99-113. [10] Sittamparam, R. (2009). RM 2m Limit to Small Estates from Sept 1. New Sunday Times, (August 16). [11] Small Estates (Distribution) Act 1955 (Act 98), 2006. The Commissioner of Law Revision Malaysia In Collaboration With Percetakan Nasional Malaysia Bhd. www.lawnet.com.my [12] Suhaili Al-Ma’amun (2010). Islamic Estate Planning: Malaysian Experience. Kyoto Bulletin of Islamic Area Studies (March 2010), pp: 165-185. [13] Tarmizi Abdul Rahim (2009). RM 31j Harta Pusaka Masih Tidak Dituntut. Utusan Malaysia, (May 2009), pp: 23. 444
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