THE LAWIN SARAWAK
In Sarawak, the administraton of estates=s ordinance provides that on obtaining probate or letters of admistration the executor or admistrator as the case may be shall forthwith collect and recover all the property, assets and effects covered by the grant and discharge thereout all the debts due bythe deceased which are legally recoverable and thereafter distribute the residue of the estate among the beneficiaries of heirs of the deceased, according to the will of the deceased or, as the case may be, in the shares to which they are entitled by recognized law or custom.
In the absence of any custom applicable to the estate of the deceased, it would appear that the English law as contained in the administration is applicable by virtue of the application of laws ordinance
It has beeb held in chan bee noe v. ea siok choo that the formalities of execution f a will are governed in the absence of any Sarawak legislation by the English law as contained in the wills act. In supama v. kalimuthu it was held that the rule against perpetuities was applicable in Sarawak and that a devise which infringed the rule was therefore void. In morris v. norie lim it was held that a divise to the roman catholic mission should be set aside for trough there was no direct evidence of fraud or indue influence, the plaintiffs had not discharged their duty of proving that the will propounded was the will of a free and capable testatrix.
Among the dayaks, wills are nt knows but rules of descent or inheritance do regulatethe transmission of real property and personal property. These principles are sometimes modified by the wishes of the original owner, who has some power of verbal testamentary disposition. It has been held in the case of sat v. randong that a dayak can make a valid written will and can by such will dispose of his own property, real or personal, to someone who would not on intestacy inherit it by customary law. In the case of pasaka land however the land code prevents the disposition of the land without the prior consent of the resident unless the land is bequeathed to the testaor’s heirs. In the case of the temuda land (that is customary tenure over crown land) there exists a form of entail and such land may not be disposed of so long as there are heirs entitled to exercise farming rights over the land. In the case of entail, and a dayak may not dispose of such property between his heirs. The property real or personal of a husband and wife revents on their deaths to their or personal of a husband and wife revent on their deaths to their children, who in theory should receive equal shares. It is customary that some of the personal property of the deceased will be either that some of the personal property of the deceased will be either destroyed at death or buried with its owner. A widower or widow and applied for probate. The respondent his step-brother enterd a caveatand claimed to be a co-parcener in the joint hindu family property. Nevertheless the respondent claimed to have a share in the joint hindu family firm of PL.A.R. in the high court the learned trial judge held that the only isuue left to be determined was whehere the deceased could lawfully dispose of by will his one-third share in the joint hindu family firm. He held that the testator’s one-trird share I =n the joint hindu family should be excluded from probate and that this one third share should form part of the deceased’s estate on intestacy. The appellant appealed to the federal court, which allowed the appeal. It was held that on obtaining an order for partition of the joint hindu family property the respondent ceased to be a member the joint hindu family property the respondent ceased to be a member of the co-parcenary in relation to what was left of the property after such partition. The only co-parceners left thereafter were the father and the appellant. On the death of the father the property goes to the appellant by survivorship, he being the only living co-parcener. The federal court also held that the probate couth is only concerned with the question of the genuineness of the will, its due execution and attestation and testamentary capacity of the testator and it is not part of the jurisdiction of the probate court to pronounce on the validity of the bequest. Probate of the will was therefore isuued to the appellant subject to the proviso that before disposing or distributing any property bequeathed under the will or the proceeds of such property there shall be an order of court to that effect.
Under the inheritance (family provision) act, power is given to the court to make reasonable provision for the wife or husband or a dependent son or daughter of a deceacsed person if the court is of opinion that no such reasonable provision has been made by his will or by the law of intestacy or by a combination of the will and the law.
In the absence of any custom applicable to the estate of the deceased, it would appear that the English law as contained in the administration is applicable by virtue of the application of laws ordinance
It has beeb held in chan bee noe v. ea siok choo that the formalities of execution f a will are governed in the absence of any Sarawak legislation by the English law as contained in the wills act. In supama v. kalimuthu it was held that the rule against perpetuities was applicable in Sarawak and that a devise which infringed the rule was therefore void. In morris v. norie lim it was held that a divise to the roman catholic mission should be set aside for trough there was no direct evidence of fraud or indue influence, the plaintiffs had not discharged their duty of proving that the will propounded was the will of a free and capable testatrix.
Among the dayaks, wills are nt knows but rules of descent or inheritance do regulatethe transmission of real property and personal property. These principles are sometimes modified by the wishes of the original owner, who has some power of verbal testamentary disposition. It has been held in the case of sat v. randong that a dayak can make a valid written will and can by such will dispose of his own property, real or personal, to someone who would not on intestacy inherit it by customary law. In the case of pasaka land however the land code prevents the disposition of the land without the prior consent of the resident unless the land is bequeathed to the testaor’s heirs. In the case of the temuda land (that is customary tenure over crown land) there exists a form of entail and such land may not be disposed of so long as there are heirs entitled to exercise farming rights over the land. In the case of entail, and a dayak may not dispose of such property between his heirs. The property real or personal of a husband and wife revents on their deaths to their or personal of a husband and wife revent on their deaths to their children, who in theory should receive equal shares. It is customary that some of the personal property of the deceased will be either that some of the personal property of the deceased will be either destroyed at death or buried with its owner. A widower or widow and applied for probate. The respondent his step-brother enterd a caveatand claimed to be a co-parcener in the joint hindu family property. Nevertheless the respondent claimed to have a share in the joint hindu family firm of PL.A.R. in the high court the learned trial judge held that the only isuue left to be determined was whehere the deceased could lawfully dispose of by will his one-third share in the joint hindu family firm. He held that the testator’s one-trird share I =n the joint hindu family should be excluded from probate and that this one third share should form part of the deceased’s estate on intestacy. The appellant appealed to the federal court, which allowed the appeal. It was held that on obtaining an order for partition of the joint hindu family property the respondent ceased to be a member the joint hindu family property the respondent ceased to be a member of the co-parcenary in relation to what was left of the property after such partition. The only co-parceners left thereafter were the father and the appellant. On the death of the father the property goes to the appellant by survivorship, he being the only living co-parcener. The federal court also held that the probate couth is only concerned with the question of the genuineness of the will, its due execution and attestation and testamentary capacity of the testator and it is not part of the jurisdiction of the probate court to pronounce on the validity of the bequest. Probate of the will was therefore isuued to the appellant subject to the proviso that before disposing or distributing any property bequeathed under the will or the proceeds of such property there shall be an order of court to that effect.
Under the inheritance (family provision) act, power is given to the court to make reasonable provision for the wife or husband or a dependent son or daughter of a deceacsed person if the court is of opinion that no such reasonable provision has been made by his will or by the law of intestacy or by a combination of the will and the law.
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