As far as probate applications are concerned, 2024 marked the beginning of a period in which the Civil High Court became increasingly unpredictable and erratic in handling such matters. This arose following a controversial decision delivered by Datuk Hazizah Kassim, the Judicial Commissioner who presided over Ex Parte: Muhamad Faris bin Mohd Fathil [2024] MLJU 2080 (Ex Parte Faris).
Hazizah’s position is that the Civil High Court has no jurisdiction to accept any Muslim will in a probate application unless it is first verified by the Syariah Court to confirm compliance with Islamic tenets. This stance marks a departure from the position held by Civil High Court judges since Malaysia’s independence in 1957, representing a break from established legal precedents spanning 68 years.
In response, I wrote two essays on the matter. The first critically examined the written decision in Ex Parte Faris, which I respectfully believe is not only flawed but displays an academic failure to understand what a probate application is all about. The second provided a more focused explanation of the fundamentals of a probate application, especially in uncontested estate matters – a conceptual understanding which the Judicial Commissioner, and the Civil High Court Registrars who follow her, appear to lack.
This essay is therefore my third, and possibly final, endeavour to address the issue, motivated by the disorganisation I see in the Civil High Court’s processing of probate applications concerning Muslim wills.
Since being called to the Malaysian Bar in April 1997, I have never once experienced a Civil High Court Registrar ordering that a Muslim will be verified before the Syariah Court as a precondition for issuing probate. However, since Ex Parte Faris, I am aware of an increasing number of cases where lawyers face such unusual demands.
This is the absurdity now taking place at the Civil High Court. Surely you either have jurisdiction to entertain a Muslim will without the need for verification, or you don’t. There cannot be any grey area in this regard, dependent solely on which Civil High Court Registrar you appear before.
As mentioned, there is clearly a lack of understanding of what a probate application is about among some Civil High Court Registrars and Judges. They fail to appreciate that the Civil High Court’s role in a probate application is only to determine whether the will tendered before it – irrespective of religion – has been duly executed, i.e. signed by the deceased testator during his or her lifetime in the manner prescribed by law. That is all.
The Civil High Court should not, at that stage, concern itself with the fairness or unfairness of the will as the basis for issuing probate. That is not its role. Even if the will’s content is deemed unfair by the deceased’s heirs, that does not mean it was not duly executed. That is a separate issue altogether and should not be conflated with the singular purpose of a probate application – to establish, based on evidence, whether the testator signed the will.
This position in law is emphasised in Order 71, Rule 9(3)(a) and Order 71 Rule 9(3)(b) of the Rules of Court 2012. Order 71, Rule 9(3) states that if the Registrar, after considering the evidence:
(a) is satisfied that the will was not duly executed, he shall refuse probate; or
(b) is doubtful whether the will was duly executed, he may refer the matter to the Court (i.e. the Civil High Court judge).
The flipside of these sub-rules is logical: if the Registrar is satisfied that the will – regardless of religious affinity – was duly executed, he must grant probate. He has no other option under the law. Yet Ex Parte Faris now gives the appearance that other options exist (such as demanding verification), causing the unnecessary and self-inflicted debacle in how the Civil High Court processes probate applications involving Muslim wills.
It is my fervent hope to see direct intervention from the higher echelons of the judiciary to put an end to this egregiousness, which comes across as an unjustifiable attempt to safeguard Muslims from supposed Civil Court encroachment into purely Islamic matters – which is clearly not the case.
Finally, this is possibly the only piece I have written in years that lacks purposeful humour. It is not that there are no moments of comedy in legal practice worthy of satire. But at 60 years of age, having witnessed the sad decline of basic critical thinking among certain officers of the Civil High Court, I cannot help but feel disheartened about the future of our judicial system – one that regurgitates the law without truly understanding its scope and purpose.