Letter of Administration (Surat Kuasa Mentadbir) dan Probate
From my observation, most lawyers failed to file their LA and Probate petition according to the correct procedure i.e failure to file an affidavit to verify the petition as provided under Order 71 Rule 5(1) Rules of The High Court 1980. The procedure in filling the LA and Probate petition is set out in O.71 r 5(1) HCR 1980:
In Order 71 Rule 5(1) HCR stated that:
O. 71 r. 5 (1) Every application for a grant must be by petition in one of the forms in Form 168 and the petition must be verified by oath which must be contained in an affidavit sworn by the applicant, and supported by such other papers as the Registrar may require.
What happens is that most of the lawyers only filed the petition and at the end of the petition there is an endorsement verifying the petition signed by the petitioner. My stand is that, even though the endorsement is made under oath, but it is not an affidavit as required under O. 41 r.5(1) HCR 1980. So this mean their petition does not supported by an affidavit and therefore the petition is not completed. Most of the lawyers argued that what they were doing were the practice since long time ago and this is the practice in Perak High Court. Some of them even argued that since 20 years ago neither the Deputy Registrar nor the Senior Assistant Registrar has corrected them so it should be no problem. Some lawyers argued that the affidavit is no needed as they have verified the petitions in the endorsements.
One lawyer introduced himself as one of the Bar Committee stepped into my chambers and said “Sir, I don’t want to argue with you, just give me another date and I will file an affidavit as you requested”. I then told him “This is not requested by me, but it is requested under the High Court Rules”. So I gave him new date. So, just follow the rule and forget the incorrect practice. Will you?
assalamualaikum
ReplyDeletei was accidentally linked into your blog while searching for my rasearch on letter of administration as well as probate. i hope you don't mind i drop by my comment here. Im currently undergoing llb program in my final year at UiTM shah alam and we were assigned to do sort of like mock hearing for my probate in the next 2 weeks. upon reading your blog, i was wondering, based on your background, whether you could assist me as to how to do a proper hearing for probate in front of SAR. the thing is we were not really being exposed to the real life situation and we have no idea what to present our mock hearing. the lecturer gave rather little overview and basically we based on our seniors to conduct the hearing and not on someone who has the hands on experience on this. it would be of great help if you could assist me as to how to do a proper hearing in front of the sar nanti. proper in terms of what language suitable for that type of hearing as well as the sequence; ie what to present first and how to explain as to why the witness cannot be found, etc. i really really appreciate your help on this and i look forward for you feed back. THANK YOU
REGARDS
llb UiTM student