Section 1
This Act may be cited as the Probate and Administra-tion Act.
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Probate and Administration Act is Brunei Act, cited as Act 11 1984, currently marked in force and first recorded in 1984.
REVISED EDITION 1984
Chapter
Opening note
This Act may be cited as the Probate and Administra-tion Act.
In this Act
"administration" comprehends all letters of admi-nistration of the estates of deceased persons, whether with or without a will annexed, and whether gran~ed for general, special, or limited purposes;
"estate" or "property" of a deceased person means the personal estate and effects of whatever kind of such person, and includes property passing on the death of such .person;
7 of 1979
Interpreta-tion
"estate duty" means estate duty under the Stamp cap.
Act;
"infant" means a person who has not attained the age of 18 years;
"matters and causes testamentary" comprehend all matters and causes relating to the granting and revocation of probate of wills and of administra-tion;
9
10
Cap. 77
Deputy
Probate
Officer and
Assistant
Probate
Officer
Probate and Administration
"'next of kin" includes persons entitled in their own right to property passing on the death of any person;
"non-contentious or common form probate busi-ness" means the business of obtaining probate and administration where there is no contention as to the right thereto, including the passing of probate and administratiOQS through the High Court in contentious cases where the contest has been ter-minated, and all business of a non-contentious na-ture in matters of testacy and intestacy not being proceedings in any action and also the business of lodging caveats against· the grant of probate or administration;
·'
"Permanent Secretary" means the Permanent
Secretary, Ministry of Finance of Brunei and, where the estate of a deceased person who was a
Muslim domiciled in Brunei is concerned, means the Permanent Secretary acting with the advice of the Religious Council;
"Religious Council" means the Religious Council established by Religious Council and Kadis Courts
Act.
Every Deputy Probate Officer and Assistant
Probate Officer shall be subject to the directions of the
Probate Officer and shall exercise such of the powers and duties conferred on and imposed upon the Probate Officer as may be specified in the said notification or in any other notification amending the same.
Any person aggrieved by the decision of a Depu-ty Probate Officer or of an Assistant Probate Officer may
Probate and Administration require that such decision be confirmed by the Probate
Officer who may confirm or rescind the same or substitute therefor any decision which could lawfully be given in accordance with the provisions of this Act.
The Probate Officer shall be a corporation sole and shall have perpetual succession and a public seal and shall have, subject to the provisions of this Act, the right to hold and transfer and otherwise deal with every description of land and property and shall have the power to institute proceedings in his corporate name in any court.
The Probate Officer shall have, subject to the provi-sions of this Act or any other written law relating to the probate and administration of the estates of deceased per-sons, the same powers and his grants and orders the same effect in Brunei, and in relation to the estates in Brunei of
-'
deceased persons, as the High Court in England in its prob-ate jurisdiction:
Provided that the Probate Officer shall have no jurisdic-tion to entertain any probate matter which would not be classified as non-contentious or common from probate busi-ness, except such matters as may be prescribed by the Chief
Justice in an order published in the Gazette.
11
Probate
Officer to be a corporation sole
Jurisdiction of Probate
Officer
The Probate Officer may in accordance with the pro-General visions of this Act-
~~:t;a~eof
issue grants of probate or letters of adminis-tration in respect of the estates of deceased per-sons having assets within Brunei;
Officer
12
Power of altering probate, etc., already granted
Sealing of documents
Probate and Administration
without personally taking out administra-tion of the estate of a deceased person, make such orders and give such relief in connection therewith as the nature of the case may require, in respect of any of the following questions or matters -
any question affecting the rights or interests of any person claiming to be creditor, devisee, legatee, next-~f-kin or cestui que trust;
the ascertainment of any class of creditors, legatees, devisees, next-of-kin or other in-terested persons;
the furnishing of any particular accounts by the executors or adthinistrators or trustees, and the vouching (where necessary) of such accounts;
the payment to the Probate Officer of any money in the hands of executors or adminis-trators or trustees;
directing the executors or administrators or trustees to do or abstain from doing any par-ticular act in their character as such executors or administrators or trustees;
The Probate Officer shall have and may exercise full power of altering and amending any grant of probate or of administration, whether made before or after the com-mencement of this Act.
All probates, administrations, orders and other in-struments, and all exemplifications and copies thereof, shall respectively be sealed with the seal of the Probate Officer;
Probate and Administration and any such document purporting to be so sealed shall be received in evidence, in any cause or proceeding of whatev-er kind, without further proof thereof.
The Probate Officer may require the attendance of any party in person, or of any person whom he may think fit to examine or cause to be examined, in any action or other proceeding in respect of matters or causes tes-tamentary, and may examine or cause to be examined upon oath parties and witnesses by word of mouth, and may, either before or after or with or without such examination, cause them or any of them to be examined upon interroga-tories or receive their, or any of their, affidavits.
The Probate Officer may by writ require the attendance of any such party or witness, and order to be produced before himself or otherwise any deeds, evidences, or writings, in the same form, as nearly as may be, as that in which a writ of subpoena ad testificandum or of subpoena duces tecum is now issued by the High Court in its original jurisdiction.
_,·
The Probate Officer shall have the like powers, juris-diction and authority for enforcing the attendance of per-sons required by him as aforesaid, and for punishing persons failing, neglecting or refusing to produce deeds, evidences or writings, or refusing to appear, or to be sworn, or to give evidence, or guilty of contempt, and generally for enforcing all orders, decrees and judgments made or given by him under this Act and otherwise in relation to the matters to be inquired into and done by or under the orders of the Prob-ate Officer under this Act as are for the time being vested by law in the High Court for such purposes in relation to any action or matter depending in the said court in its original jurisdiction.
13
Powers as to requiring attendance of and examining parties and witnesses
General powers of enforcing process
14
Power of ordering production of testamentary writings
Administra-tion of oaths, etc.
Dealing with assets rrior to offici a representa-tion
Probate and Administration
The Probate Officer may, on motion or petition or otherwise, in a summary way, whether any action or other proceeding is or is not pending before the Probate
Officer with respect to any probate or administration, order any person to produce and bring before him, or otherwise as he may direct, any paper or writing being or purporting to be testamentary which may be shown to be in the possession or under the control of such person.
If it is not shown that any such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that he has knowledge of any such paper or writing, the Probate
Officer may direct such person to . .attend for the purpose of being examined by him or upon interrogatories respecting the same, and such person shall be bound to answer such questions or interrogatories, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default in not attend-ing or in not answering such questions or interrogatories, or not bring in such paper or writing, as he would have been subject to in case he had been a party to an action before the
Probate Officer and had made such default.
The Probate Officer and every Deputy and Assistant
Probate Officer, and any other person whom the Minister may appoint for that purpose shall, respectively, have full power to administer oaths and to perform such other duties in reference to matters and causes testamentary as may be assigned to them by any rules and orders made under this
Act.
No person other than the Probate Officer shall assume possession of, dispose of or deal with the assets of a deceased person unless he has obtained a grant of probate or letters of administration from the Probate Officer or un-less he has a probate or letters of administration (within the meaning assigned to those expressions in Part VI) sealed by
Probate and Administration the Probate Officer in accordance with the provisions of that
Part:
Provided that a relative or friend of a deceased person may take possession of any asset for the purpose of safe keeping pending the issue of probate or letters of adminis-tration by the Probate Officer or the sealing by the Probate
Officer of probate or letters of administration as provided in
Part VI
It shall be lawful for the Probate Officer whenever he thinks it expedient to do so, and upon such evidence of death as he deems sufficient, to receive or take possession of the private papers, moneys, goods, chattels and other mov-able property whatsoever of any deceased person which may be found within Brunei, and to provide for the safe custody thereof, until probate of the will of such deceased person or administration of his estate has been granted by him.
Power of
Probate
Officer 15
to take possession of property of deceased person until grant
Any person who, without lawful authority or excuse Punishment
•
ofpe~on
Ill that behalf-unlawfully removin$ out ofBrune1
removes or attempts to remove out of property of
.
.
d .
deceased
Brunei any such property as IS mentlone In sec-person tion 14; or
B. L.R. 0. 111984
16
Lien on property of deceased person for expenses incurred unders.l4
Person having or finding will to produce it
Vesting of estate of deceased person in
Probate
Officer
Summary administrati-on of intestates'
estates not exceeding
$25,000
Probate and Administration
destroys, conceals, or refuses to yield up any such property on demand to the Probate Officer, shall be guilty of an offence; Penalty, a fine of $2,000 and imprisonment for 6 months.
The Probate Officer shall have a lien upon all proper-ty mentioned in section 1:1 for the reasonable expenses incurred by him in respect thereof in carrying out the provi-sions of the said section, and such expenses shall also consti-tute a primary charge on the estate of the deceased person.
When any person dies leaving a will within
Brunei, the person in whose keeping such will has been deposited, or who finds such will after the testator's death, shall produce and, if required, shall deliver the same to the
Probate Officer within 30 days after the death of the testa-tor, or from the time when he has had notice thereof, or from the time of the finding of a will, as the case may be.
Any person who refuses or neglects to comply with the requirements of this section shall be guilty of an offence: Penalty, a fine of $2,000.
Where any person dies, whether in Brunei or else-where, leaving estate in Brunei in respect of which he dies intestate, such estate shall vest in the Probate Officer who may, if he thinks fit, receive and take possession of the same until administration is granted in respect thereof.
Where the whole of such estate does not, in the opin-ion of the Probate Officer, exceed in value the sum of
$25,000, it shall be lawful for him, if he thinks fit, without any legal formality, to get in and administer the same in a summary manner, for the benefit of the persons he may deem interested therein, without a grant or other legal for-mality.
Probate and Administration
CAP. 11 20.
The Probate Officer may himself take out admi-nistration in any of the following cases -
where a person dying intestate, whether in
Brunei or elsewhere, has left property situate in
Brunei and no next of kin of such person are resi-dent in Brunei;
where a person dying intestate, whether in
Brunei or elsewhere, has left property situate in
Brunei and the next of kin of such person who are resident in Brunei file with the Probate Officer a request for, or consent to, the making of such grant in writing signed by them;
where a person dying intestate, whether in
Brunei or elsewhere, has left property situate in
Brunei and no person has, within 12 months after the death of such person, obtained .administration of his estate; and
where a person dying intestate, whether in
Brunei or elsewhere, has left property situated in
Brunei and the_.next of kin of such person who are resident in Brunei are infants.
The provisions of this section shall apply, with the necessary modifications, in the case of a person who dies testate, whether in Brunei or elsewhere, but without appointing an executor, or whose executor, if appointed, refuses, neglects or is unable to act.
The Probate Officer may in his discretion take out administration in any other case not provided for in this section if he considers it desirable so to do.
17
Cases in which
Probate
Officer is entitled to administra-tion 21.
Nothing in this Act shall be construed to enable or savingasto require the Probate Officer to obtain administration of the ~!~~!~~or estate of any person dying in the naval, military or air ser-persons
18
Commission on moneys received
Keeping of books of account
Copies of documents and accounts
Probate and Administration
[1982 Ed.
vices of Her Majesty and subject to the Articles of War, or of any deceased seaman or apprentice for the administration of whose estate provision is made by any Act of Parliament, or of any person for the administration of whose estate special provision is otherwise made in Part V.
A commission at the rate of five per cent on the first one thousand dollars, two and one half per cent on the next four thousand dollars and one per cent on the balance, or such lower rate or rates as the Probate Officer may approve in the case of any particular estate, shall be chargeable on the gross value of all property of whatsoever nature received or taken possession of, or realised or otherwise dealt with, by the Probate Officer under this Act.
The Probate Officer shall keep a general register of all estates under his administration, a cash book and a ledger or account current book, and such other books as he may find necessary or may be prescribed.
,
He shall enter in books, to be kept by him for that purpose, separate and distinct accounts of each estate and of all property of every description which may come to his hands, and also of all payments made by him on account of each estate, specifying the dates of such receipts and payments respectively.
Each book shall be kept in the office of the Prob~
ate Officer and shall be open during office hours for the inspection of any person who has occasion to inspect the same, on payment of the prescribed fee.
The Probate Officer shall give to any person who applies for the same copies of all documents and accounts in his possession relating to any estate under his administration or to any property which he receives or of which he takes possession under this Act, on payment of the prescribed fees.
Probate and Administration
If any such copy is refused, the applicant may petition the High Court in a summary way for an order on the Probate Officer to give such copy; and the costs of any such petition and order shall be paid by the Probate Officer, if the Court so directs.
The Probate Officer shall, on the expiration of each half-year, make out and furnish to the Minister a return, according to the form in the Schedule, of all estates vested in or administered by him during the half-year then expired, and he shall pay into the hands of the Permanent Secretary the balance remaining in respect of each such estate im-mediately after the same has been closed.
Any person who feels aggrieved by anything done by the Probate Officer in the exercise of his office as adminis-trator under any grant of letters of administration taken out by him under this Act, may apply for redress to the High
Court by summary petition certified upon oath, and the
Court may thereupon take such evidence as it thinks fit and make any order in relation to the matter which the justice of the case requires.
...
A grant of probate shall not be issued unless -
the original will or, if the will has already been proved in a foreign country, a true copy thereof, certified by the foreign authority, has been deposited with the Probate Officer;
that the will was signed at its foot or end by the testator, or by some other person for him in his presence and at his direction, that the testator's signature was made or acknow-ledged in the presence of at least 2 witnesses, both being present at the same time, and that 19
Half-yearly returns
Redress against
Probate
Officer in his capacity as administrator
Will to be deposited
20
Persons entitled to probate and letters of administra-tion
Probate and Administration such 2 witnesses afterwards attested and sub-scribed the will in the testator's presence, or
that the will was signed by the testator or by some other person for him in his presence and at his direction, in the presence of a magis-trate, who subscribed his signature thereto as a witness thereof; and
where the deceased was a Muslim domiciled in Brunei that the Probate Officer is satisfied that the provisions thereof do not conflict with Muslim law as practised in Brunei.
The persons entitled to probate are the exectuors appointed, expressly or impliedly, by the deceased's last will.
Any executor may in writing or orally expressly, or by action impliedly, renounce his right to probate.
If no executor has been appointed expressly or impliedly by the deceased's last will, or is competent and willing to act as such, then the undermentioned persons, if of full age and sound mind and suffering from no legal disability, shall be entitled in the following order to letters of administration with the will annexed of such will -
if the whole of the estate of the deceased is not disposed of by his will, the persons who would have been entitled to letters of administration if the deceased had died intestate;
if the whole of the estate of the deceased person is disposed of by his will, the person who
Probate and Administration
CAP. ll would have been entitled to letters of administra-tion if the deceased had died intestate.
( 4) The following persons, if of full age and sound mind, are entitled, in the following order, to letters of admi-nistration of a deceased person's estate -
The provisions of this section shall not apply where the deceased person was a Muslim domiciled in
Brunei, and in such case probate or administration shall be granted to the person entitled ~ccording to Muslim law as practised in Brunei.
21
B.L.R.O.l/1984
22
Practice as to caveat against grant
Effect of executor renouncing probate
Effect of executor not taking probate
Appointment of administrator of intestate's estate
Probate and Administration
Any person other than the Probate Officer hav-ing in his possession custody or control any property or asset of a deceased person shall forthwith report the fact to the
Probate Officer.
Any person contravening the provisions of subsection (1) or subsection (2) shall be guilty of an off-ence: Penalty, a fine of $2,000 and imprisonment for one year, and, in addition, shall be liable in damages to the estate of the deceased.
OF PROBATES, ETC.
Caveat
A caveat against the grant of any probate or administration may be lodged with the Probate Officer.
Subject to any rules or orders made under this
Act the practice and procedure of the court in respect of any such caveat shall, as nearly as may be, correspond with the practice and procedure in force in-England.
Executorship
Where any person renounces probate of the will of which he is appointed executor or one of the executors, the right of such person in respect of the executorship shall wholly cease, and the representation of the testator and the administration of his estate shall, without any further renun-ciation, go, devolve and be committed in like manner as if such person had not been appointed executor.
Whenever an executor appointed in a will survives the testator but dies without having taken probate, or, hav-ing been cited to take probate, does not appear to such citation, the right of such person in respect of the execu-torship shall wholly cease, and the representation of the testator and the administration of his estate shall go, de-volve and be committed in like manner as if such person had not been appointed executor.
Administration
Where a person dies wholly intestate as to his person-al estate but without having appointed an executor thereof willing and competent to take probate, or where the execu-tor is, at the time of the death of such person, resident out of
Probate and Administration
Brunei, or where it appears to the Probate Officer to be necessary or convenient to appoint some person to be the administrator of the personal estate of the deceased person or of any part of such estate, other than the person who, if this Act had not been passed, would by law have been enti-tled to a grant of administration of such personal estate, it shall be lawful for the Probate Officer to appoint such per-son as the Probate Officer thinks fit to be such administra-tor, on his giving such security, if any, as may be required under this Part or as the Probate Officer may direct, and every such administration may be limited in such manner as the Probate Officer thinks fit.
Probate of letters of administration shall not be granted to any person outside Brunei.
If-
the person entitled to probate or letters of administration, as the case may be, is absent from
Brunei; and
there is no other person present in Brunei who is equally entitled to such probate or letters of administration and who is willing and competent to act, then probate or letters of administration, as the case may be, may be granted to the lawfully appointed attorney of the person mentioned in paragraph, (a).
An attorney holding probate or letters of admi-nistration shall be subject to the same liabilities in all re-spects as an executor or administrator in his own right.
At the expiration of 12 months from the death of Gra1_1tof 23
d d
'f h h specml any ecease person, 1 t e person or persons to w om administra-probate of the will has been granted, or the person or per-
~~:c:t~~r~r sons to whom administration has been granted, is or are :'1-dministrator residing out of Brunei, it shall be lawful for the Probate j~~~~~~ion
24
Payment of costs relating to special administra-tion
Case of infant being sole executor
Probate and Administration
Officer, on the application of any creditor, next of kin or legatee, grounded on an affidavit made for that purpose, to grant such special administration as he may think fit of the estate of such deceased person.
It shall be lawful for the Probate Officer, on ap-plication made for that purpose by any person interested, to direct any shares or stock in any joint-stock company to be transferred into the name of the Probate Officer, in trust for such purposes as the Probate Officer may direct, in any action in which the person to whom such special administra-tion has been granted is a party:
Provided, nevertheless, that if•any executor or adminis-trator of such deceased person, being capable of acting as such, returns to and resides within Brunei, the Probate
Officer may, if he thinks fit, revoke such special grant:
Provided further, that if any action is pending in relation to the estate of such deceased person, such executor or administrator shall be entitled to be made a party thereto.
The costs incurred by granting any such special admi-nistration shall be paid by such person or out of such fund as the Probate Officer may direct, and the costs incurred by proceeding in any action against any such administrator shall be paid by such person or out of such fund as the court in which the action is pending may direct.
Where an infant is sole executor of any deceased person, administration with the will annexed shall be granted to the guardian of such infant, or to such other person as the Probate Officer may think fit until such infant has ceased to be an infant, at which period, and not before, probate of the will shall be granted to him, if he is of sound mind and not suffering from any legal disability and is will-ing to act.
Probate and Administration
The person to whom such administration is granted shall until such infant has ceased to be an infant have the same powers vested in him as if probate had been granted to him in his own right.
If the Probate Officer considers that the person or persons entitled to probate or letters of administration is or are unfit to act or that it is necessary for the benefit or protection of the estate, he may issue the grant to the person or persons next entitled, or to any suitable person or per-sons who may be willing to act.
No probate of letters of administration shall be granted to a lunatic or a person of unsound mind, but where any such person, if of sound mind, would be entitled to probate or letters of administration, letters of administra-tion with or without the will annexed, as the case may be, may be granted to the person to whom the care of his estate has been lawfully committed, or to such other person as to the Probate Officer seems fit, for the use and benefit of the lunatic or person of unsound mind, until he becomes of sound mind and obtains a grant to himself.
,i
Where a person dies, leaving property in which he had no beneficial interest on his own account, and does not leave a representative who is able and willing to act, letters of administration, limited to such property, may be granted to the person beneficially interested in the property, or to some other person on his behalf.
In any case in which it appears necessary for preserv-ing the property of a deceased person, the Probate Officer may grant to any person whom he thinks fit, letters of admi-nistration limited to the collection and preservation of the property of the deceased and giving discharges of debts due to his estate, subject to the directions of the Probate Officer.
25
Power to issue grant to any other person when person entitled unfit to act
Lunatics
Letters of administra-tion of trust property
Letters of administra-tion to collect and preserve property
B.LR.O. IIJ984
26
Grants of effects unadminis-tered
Appointment of administrator pendente lite
Bond to be given
Amount of bond
Probate and Administration
If a person to whom probate has, or letters of admi-nistration have, been granted has died leaving a part of the deceased's estate unadministered, a new representative may be appointed for the purpose of administering such part of the estate.
( 1) Pending any action or the appeal from any deci-sion given as a result of any action touching the validity of the will of any deceased person, or for obtaining, recalling or revoking any probate or any grant of administration, the
Probate Officer may appoint an administrator of the estate of such deceased person.
The administrator so appointed shall have all the rights and powers of a general administrator, other than the right of distributing the residue of such estate.
Every such administrator shall be subject to the immediate control of the Probate Officer and act under his direction.
Administration Bond 43.
Every person (other than the Probate Officer) to whom any grant of administration is committed shall, unless the Probate Officer otherwise directs, give a bond, with (if the Probate Officer requires) one or more surety or sureties, conditioned for duly collecting, getting in and administering the estate of the deceased person, and the bond shall be in such form as the Probate Officer may direct.
Every such bond shall be in a penalty of double the amount under which the estate of the deceased person is sworn, unless the Probate Officer in any case thinks fit to direct the same to be reduced, in which case it shall be lawful for the Probate Officer to do so; and the Probate
Officer may also direct that more bonds than one shall be given so as to limit the liability of any surety to such amount as the Probate Officer thinks reasonable.
Probate and Administration
CAP. 11 27 45.
A list of all the property declared for the pur-Annexures poses of estate duty shall be annexed to the grant of probate or letters of administration.
The issue by a Probate Officer of probate or letters of administration shall vest in the executor or administrator named therein, and if more than one, jointly, for the pur-pose of administration, all the property, estate and effects of the deceased set out in the list annexed to the grant.
Revocation of grant
The Probate Officer may revoke his grant of probate or letters of administration at any time upon good cause being shown.
Notice of revocation shall be posted outside the
Government Offices of the Probate Officer and shall be inserted in the Gazette.
When any probate•or administration is revoked, all payments bona fide made to any executor or administrator under such probate or administration before the revocation thereof shall be a legal discharge to the person making the same, and the executor or administrator who has acted under any such revoked probatt; or administration may re-tain and reitnburse himself in respect of any payments made by him which the person to whom probate or administration is aftewards granted might have lawfully made.
All persons making or permitting to be made any payment or transfer bona fide upon any probate or adminis-tration granted in respect of the estate of any deceased per-son shall be idemnified and protected in so doing, notwith-standing any defect or other thing whatsoever affecting the validity of such probate or administration.
Effect of grant of probate, etc.
Revocation of grant
Validation of payments made under probate or administra-tion subse-quently re-voked
Validation of payments made under defective probate or administra-tion
B.L.R.O. 11/984
28
Continuance of proceed-ings begun under tem-porary administra-tion subse-quently re-voked
Practice in matters not provided for
Sittings in office
Powers of
Probate
Officer sitting in office
Powers of the
Probate
Officer with regard to costs
Probate and Administration
Where, before the revocation of any temporary admi-nistration, any proceedings have been commenced in the
High Court in its original jurisdiction by or against any administrator so appointed, the Probate Officer may order that a suggestion be made upon the record of the revocation of such administration, and the grant of probate or adminis-tration which has been made consequent thereupon, and that the proceedings shall be continued in the name of the new executor or administrator in like manner as if the pro-ceedings had been originally commenced by or against such new executor or administrator, but subject to such condi-tions and variations, if any, as the Probate Officer may direct.
The practice to be followed by the Probate Officer shall, except where otherwise provided by this Act or by the rules or orders made thereunder, be, so far as the circumst-ances of the case will admit, according to the practice in force in the High Court of Justice in England in its probate jurisdiction.
It shall be lawful for the Probate Officer to sit in his office for the despatch of such business as can, in his opin-ion, with advantage to the suitors be heard in his office; and the times at which sittings shall be held shall be fixed by the
Probate Officer:
Provided that no matter shall be heard in his office which either party requires to be heard in public.
The Probate Officer, when sitting in his office, shall have and exercise the same power and jurisdiction in respect of any business brought before him as if he were sitting in public.
The Probate Officer shall have the same powers with regard to the costs of any action or other proceeding as the
High Court has with regard to costs in actions and other proceedings in its original jurisdiction.
Probate and Administration
Evidence
Subject to any rules or orders made under this
Act, the witnesses, and where necessary the parties, in such contentious matters as may be prescribed by the Chief Jus-tice in accordance with th~ Proviso to section 5 where their attendance can be had shall be examined orally by or before the Probate Officer:
Provided that, subject to any such rules or orders as aforesaid, the parties shall be at liberty to verify their re-spective cases, in whole or in part, by affidavit, but so that the deponent in every such affidavit shall, in the application of the opposite party, be subject to be cross-examined by or on behalf of such opposite party orally as aforesaid, and after such cross-examination may be re-examined orally as aforesaid by or on behalf of the party by whom such affida-vit was filed.
When a witness in any such matter is out of
Brunei, or when, by reason of his illness or otherwise, the
Probate Officer does not think fit to enforce his attendance in person, it shall be lawful for the Probate Officer to order a commission to issue for his examination upon interroga-tories or otherwise, or, if the witness is within Brunei, to order his examination, upon interrogatories or otherwise, before any person named for that purpose in the order.
Any affidavit sworn out of Brunei in the manner men-tioned in any Act relating to evidence may be used in any action or proceeding before the Probate Officer.
29
Examination of parties and witnesses
Use of affida-vit sworn out of Brunei
The rules of evidence observed in the High Court in Rules or
·
· ·
·
· b d evidence
Its ongtnal Jurisdiction shall be apphca le to an be observed in the trial of all questions of fact by the Probate
Officer.
30
Duties of executors and administra-tors
Probate and Administration
On obtaining probate or letters of administration the legal personal representative shall forthwith -
discharge thereout all the debts due by the deceased which are legally recoverable; and
where the deceased was a Muslim domiciled in Brunei, in accordance with Muslim law as practised in Brunei;
where the deceased was not a Muslim but was an Asian domiciled in Brunei and the race to which he belonged has its own recognised and clearly-defined customs relating to the admi-nistration and distribution of the estates of de-ceased persons, in accordance with the terms of the will or, if no will has been produced, according to those customs;
in all other cases where the deceased was domiciled in Brunei, in accordance with the terms of the will or, if no will has been proved according to the law for the time being in force in England relating to the administration of the estates of deceased person; and
in all cases where the deceased was not domi-ciled in Brunei, in accordance with the law of the country of his domicil~:
'-
Provided that before distributing the residue of the estate an executor or administrator may reimburse himself out of
Probate and Administration the assets of the estate in respect of any monies paid by him on account of funeral expenses, estate duty, other probate or administration expenses and any other necessary ex-penses incurred by him on behalf of the estate.
An executor or administrator may sell all or any portion of the estate for any of the following purposes -
recovering any expenses lawfully incurred on behalf of the estate (including funeral expenses, estate duty, other probate or administration ex-penses and any other expenses necessarily incurred by him on behalf of the estate;
converting the assets of the estate into prop-erty of a non-wasting nature or into investments approved by the Probate Officer:
,/
Provided that any property or asset specifically be-queathed in the deceased's will shall not be sold -
for the purposes specified in paragraph (c)
and (d), in any event;
for the purposes specified in paragraphs (a)
and (b), until all the other assets of the estate have been realised and the proceeds found insufficient; and then only so much of such property or assets so specifically bequeathed shall be sold as is necessary for such purpose.
For the purpose of this section property "speci-fically bequeathed" means any particular property or asset
(other than money) bequeathed to any particular person or 31
Sale of assets for administra-tion purposes
B.L.R.O. J//984
32
Abatement of legacies
Retention of estate pending ultimate distribution
Specialty and simple contract debts to stand in equal degree
Power of the
Probate
Officer to make an order limiting time for creditors to send in claims against estate
Probate and Administration persons or for any particular purpose, not being the subject of a residuary bequest.
Where the assets of the estate are insufficient to en-able all the pecuniary legacies under the will to be paid in full, such legacies shall, unless the will otherwise provides, abate proportionately.
If, owing to the terms of the will, the minority or unsoundness of mind of any heir or beneficiary, or for any other cause, the executor or administrator is unable to transfer the property or any portion thereof to the heirs or beneficiaries or any of them, he shall apply without delay to the Probate Officer for his directions.
In the administration of the estate of every deceased person, no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by or arises under a bond, deed or other instru-ment under seal or is otherwise made or constituted a spe-cialty debt; but all the creditors of such person, as well specialty as simple contract, shall be treated as standing in equal degree, and be paid accordingly out of the assets of such deceased person, whether such assets are legal or equitable:
Provided that this Act shall not prejudice or affect any lien, charge or other security which any creditor may hold or be entitled to for the payment of his debt.
Any executor or administrator may apply to the
Probate Officer for an order limiting the time for creditors and others to send in their claims against the estate of the testator or intestate, and specifying what notices are to be given of the making of such order and of the time thereby limited; and the Probate Officer may make such order thereon as he thinks fit.
Probate and Administration
Where an executor or administrator has given the notices specified in any such order, he shall, at the ex-piration of the time limited thereby for sending in such claims, be at liberty to distribute the assets of the testator or intestate, or any part thereof, amongst the parties entitled thereto, having regard to the claims of which he has then notice, and shall not be liable for the assets, or any part thereof, so distributed to any person of whose claim he has not had notice at the time of distribution of the assets or a part thereof, as the case may be.
Nothing in this section shall prejudice the right of any creditor or claimant to follow the assets, or any part thereof, into the hands of any persons who may have re-ceived the same respectiv~ly, nor the operation of any writ-ten law relating to trustees.
If an executor or administrator-
allows the deceased's share in any business in which he was a partner and which is being continued at a loss by the remaining partners to remain in the business without taking steps to re-cover such share, he shall be liable to the beneficiaries or heirs to the extent of the loss suffered by the estate, unless he satisfies the Probate
Officer that his conduct was justifiable in the circumstances.
33
Devastavit of executors, etc.
Pl
B.L.R.O. Jll984
34
Administra-tors to account for all profit made
Administra-tors to keep accounts
Leases, mortgages etc. by administra-tors
Debts incurred by administra-tors not to be charged on the estate
Probate and Administration
An executor or administrator shall account to the beneficiaries or heirs for any profit made by him out of, or in respect of, the assets of the estate, other than authorised remuneration.
Executors and administrators shall keep true and complete accounts of their administration and shall -
An executor or administrator who fails to pro-duce a true and complete account of his administration when called upon to do so by the Probate Officer shall be guilty of an offence: Penalty, a fine of $2,000.
An executor or administrator who leases, mortgages or pledges any portion of the estate without the written sanction of the Probate Officer shall be guilty of an offence: Penalty, a fine of $1,000.
No Land Officer shall register any deed of lease or mortgage by an executor or administrator with produc-tion of such sanction or order.
An executor or administrator shall be personally li-able for all debts incurred by him on behalf of the estate, and such debts shall not be recoverable by the creditors against the assets of the estate, but the executor or adminis-trator shall be entitled to be indemnified out of such assets in respect of debts properly and lawfully incurred by him on such behalf.
Probate and Administration
CAP. 11 35
The assent of the executor is necessary to complete a Executors'
legatee's title to his legacy or a devisee's title to his devise.
~~~e~~aryto
It shall be lawful for the Probate Officer to allow to any executor or administrator, including an administrator appointed pendente lite as aforesaid, (or to a person acting under a power of attorney as attorney for an executor or administrator in the matter of the sealing of a probate or administration under Part VI, or in the matter of the realisation and administration of an estate under a probate or administration so sealed) such remuneration out of the estate of the deceased person as may be just and reasonable for his pains and trouble therein:
Provided that no allowance whatever shall be made to any executor or administrator or attorney who neglects to pass his accounts at such time, or to dispose of any moneys, goods, chattels, or securities with which he is chargeable in such manner, as, in pursuance of any rule or order or prac-tice, may be requisite:
Provided further, that no such remuneration shall exceed five per cent on the first otle thousand dollars, two and a half per cent on the next four thousand dollars and one per cent on the balance of the gross value of all property of what-soever nature administered.
Wherever the Probate Officer is required by this Act to act in accordance with Muslim law as practised in Brunei or to act with the advice of the Religious Council he shall refer the matter to the Court of the Chief Kadi and shall act upon any written statement which is certified by that Court to have been obtained for the purpose of the matter so referred in accordance with section 50 of the Religious
Council and Kadis Courts Act.
complete devisee's title
Allowance of remuneration to executor, administrator or attorney
Proof of
Muslim law
Cap. 77
36
Proof of
Chinese law asto administra-tion of property of deceased person
Power of Permanent
Secretary where sum not exceeding
$2,500is payable to deceased person
Probate and Administration
Whenever any person who is a native of China dies intestate leaving property within Brunei, and it is necessary to obtain proof of the law of China for the purpose of reg-ulating the administration of the property of such deceased person according to the law of his domicile, it shall be lawful for the Probate Officer in his discretion, to receive in evi-dence any written statement of the law of China which is certified by any British consular officer in China under his official seal to have been obtained by him from an officer of the Chinese Govern1nent for the purposes of such adminis-tration and with reference to the facts of the particular case under consideration, and thereafter to act upon such written statement in such manner as he thinks fit.
PARTY
SPECIAL PROVISIONS
Small sums payable by public departments to deceased persons
On the death of any person to whom any sum of money not exceeding $2,500 is payable by a public depart-ment within Brunei in respect of civil pay or allowances or annuities granted either under the authority of Her Britan-nic Majesty's Government or of the Government of Brunei, it shall be lawful for the Permanent Secretary, on being satisfied of the expediency of dispensing with probate or administration, to authorise the payment of such sum to such person or persons as the Permanent Secretary may consider entitled thereto, without requiring the production of probate or administration.
Payment of all such sums of money shall be made under such regulations as the Permanent Secretary may, with the approval of the Minister, make for that purpose.
Probate and Administration
CAP. 11
Any payment made under the provisions of section 73
shall be valid against all persons whatever, and all persons acting under the said provisions shall be absolutely dis-charged from all liability in respect of any moneys duly paid or applied by them under the said provisions.
Estate of subordinate police and prison officers
Any person employed in the police force, not above the rank of inspector, and any such person seconded to the prisons department, who shall die whilst so em-ployed, shall not be deemed to be within the meaning of the preceding provisions of this Act.
The Commissioner of Police and the Superinten-dent of Prisons respectively are hereby constituted adminis-trators of the estates of such persons in their departments and are required, without any legal formality, to get in and administer the same, and, within one month after the death of any such person, to certify the same and the amount thereof to the Probate Officer for registration, and to pay over to the Permanent Secretary the balance of every such estate, after payment of all lawful claims against the same.
It shall be la~ful for the Probate Officer, in his discretion, on the application of the Commissioner of Police or the Superintendent of Prisons, as the case may be, to sign an order upon the Permanent Secretary for the payment of the whole or any part of such balance to such person or persons as may appear to him to be entitled thereto, and the
Permanent Secretary shall comply with such order.
Estates of persons dying on voyages to Brunei 37
Validity of payment made under s.73
Summary administra-tion of estates of subordinate police and prison officers
( 1) The following special provisions shall regulate ~dministra-h d . .
.
f h f h d'
t1onofestate t e a mtmstratlOn o t e estates o passengers w o 1e at ofpassenger sea in the course of a voyage to Brunei on board of any ~~~~~~~o vessel which afterwards arrives in Brunei-Brunei
38
Probate and Administration
where any passenger has died on board any vessel in the course of a voyage to Brunei, the master of the vessel in which such passenger has died shall, immediately upon the arrival of the ves-sel in Brunei, hand over to the Director of Marine all the goods and effects of such passenger then on board of such vessel;
if he thinks that their value is more than $500, he shall forthwith hand them over to the Prob-ate Officer to whom he shall also furnish in writing all such infofmation as he may have been able to obtain about the deceased pas-senger and as he may consider likely to be useful for the estate; and
if he thinks that their value is not more than
$500, he shall, in such manner as he may con-sider just and convenient, distribute them amongst the persons who may appear to him, in his discretion, to be entitled thereto, or, if he can find no such persons within one month of the time when the goods and effects came into his hands, then he shall sell them and pay the proceeds of the sale to the Permanent
Secretary, to a special account to be there kept for that purpose;
at any time within 12 months of the time when the proceeds of any estate have been paid to the Permanent Secretary under this section, any person entitled to the said proceeds, or to any por-tion thereof, may apply to the Director of Marine for the same, and, at the expiration of the said 12
months, the Director of Marine may make applica-tion in that behalf to the Permanent Secretary, and the Permanent Secretary shall pay to the Director
Probate and Administration of Marine the said proceeds or a portion thereof, and the Director of Marine shall distribute the same amongst the applicants in such manner as he may consider just and convenient;
before distributing any estate or paying the proceeds of any estate into the Treasury under this section, the Director of Marine shall deduct the amount of any expenses or costs which he may have incurred in advertising or otherwise in the administration of the same; and
if no person entitled applies to the Director of Marine under paragraph (c) within the 12
months mentioned in that paragraph, the proceeds of the estate shall be paid over to the general re-venue; but it shall be lawful for the Minister, with-in a period of 6 years thereafter, to direct a refund of the same, or any portion thereof, to any person who establishes, to his satisfaction, a legal, equit-able or moral claim thereto.
Where such goods and effects have been handed over to, or taken possession of by, the Probate Officer, he may, after such inquiry as he may think sufficient, distribute them, in such manner as he may consider just and conve-nient, amongst the persons who may appear to him, in his discretion, to be entitled thereto or if he can find no such persons within 6 months of t~e time when the goods and effects come into his hands, then he shall sell them and pay the proceeds of the sale into the Treasury, to a special account to be there kept for that purpose, or into the account of the Government at such bank as the Permanent
Secretary may direct.
The provisions of any written law relating to un-claimed balances shall apply to moneys paid into any account under this section as they do to any balance of an intestate's estate.
39
40
Interpreta-tion
Sealing of probates and letters of administra-tion
Probate and Administration
( 4) For the purposes of this section "voyage of a passenger to Brunei" means the voyage of a passenger which would in the ordinary course terminate in Brunei as the port of destination of the passenger.
Any master of a vessel who refuses or neglects to comply with the requirements of this section shall be gui1ty of an offence: Penalty, a fine of $5,000.
OUTSIDE BRUNEI
In this Part
"British court in a foreign country" means any
British court having jurisdiction out of the Com-monwealth in pursuance of an Order in Council, whether made under any Act or otherwise;
"court of probate" means any court or authority, by whatever name designated, having jurisdiction in matters of probate;
"probate" and "letters of administration" include confirmation in Scotland, and any instrument hav-ing in any other part of the Commonwealth the same effect which under English law is given to probate and letters of administration respectively;
"estate duty'' includes any duty payable on the value of the estate and effects for which probate or letters of administration is or are granted.
Where a court of probate in any part of the Common-wealth, or a British court in a foreign country, has granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may,
Probate and Administration on being produced to, and a copy thereof deposited with, the Probate Officer, be sealed with the seal of the Probate
Officer, and thereupon shall be of the like force and effect, and have the same operation in Brunei as if granted by that officer.
The Probate Officer shall, before sealing a probate or Conditions to be fulfilled letters of administration under this Part, be satisfied -
before
that estate duty has been paid or postpone-ment of payment allowed in respect of so much, if any, of the estate as is liable to estate duty in
Brunei; and
in the case of letter of administration, that security has been given in a sum sufficient in amount to cover the property, if any, in Brunei to which the letters of administration relate, and may require such evidence, if any, as he thinks fit as to the domicile of the deceased person.
The Probate Officer may also, if he thinks fit, on the application of any creqitor, require, before sealing, that adequate security be given for the payment of debts due from the estate to creditors residing in Brunei.
For the purposes of this Part, a duplicate of any prob-ate or letters of administration sealed with the seal of the court granting the same, or a copy thereof certified as cor-rect by or under the authority of the court granting the same, shall have the same effect as the original.
The power conferred on His Majesty in Council by section 86 to make general rules for regulating the proce-dure and practice, including fees and costs, in and incidental to applications for grants of probate or letters of administra-tion in Brunei shall apply to applications for sealing under this Part, and subject to any exceptions and modifications sealing
Security for payment of debts
Duplicate or copy ,.,J { ._,,. t admissible· ·
Rules as to practice under this
Part
42
Reference to the court
Appeals
Protection of Probate
Officer and
Deputy and
Assistant
Probate
Officers
CAP. II
Probate and Administration made by such rules, the Acts for the time being in force in relation to estate duty (including the penal provisions there-of) shall apply as if the person who applies for sealing under this Part were applying for probate or letters of administra-tion.
The Probate Officer may refer to the High Court for decision any question of law o~er than a question of
Muslim law arising out of any proceedings under this Act and the costs thereof shall be borne by the estate.
Any person aggrieved by the decision of the
Probate Officer, other than a decision made after reference to the Court of the Chief Kadi under the provisions of sec-tion 71 or to the High Court under the provisions of section 83, may, subject to the provisions of any written law relating to civil appeals to the High Court from the judgment of the
Court of a Magistrate, appeal to the High Court.
Any person aggrieved with the decision of the
High Court on sitting on a reference or an appeal from a decision of the Probate Officer may, subject to the provi-sions of any written law relating to civil appeals to the Court of Appeal, appeal to such Court.
No action shall be brought against the Probate
Officer or any Deputy or Assistant Probate Officer for any-thing done by him in respect of the execution or the in-tended execution of any power vested in him by this Act or for anything done by him in the exercise of the office as administrator under any grant of letters of administration taken out by him under this Act if this was done in good faith.
Probate and Administration
His Majesty in Council may make rules-
to prescribe for the procedure to be fol-lowed in all probate and administration causes and matters;
to prescribe all matters and things which under or by reason of this Act require to be pre-scribed; and
Until such rules have been made as aforesaid, the rules and orders in relation to matters of probate and admi-nistration in the Probate Division of the High Court of Jus-tice in England, and the forms of proceedings in use therein, with such modifications as the circumstances may require, shall, unless the Probate Officer otherwise directs, be fol-lowed and adopted in B;unei.
An official copy of the whole or any part of a will, or an official certificate of the grant of any administration, may be obtained from the Probate Officer on the payment of such fees as may be fixed for the same by the rules made under this Act.
Where no provision is made by this Act for any mat-ter concerning or connected with the obtaining of probate or the administration of deceased persons' estates, the relevant law in force in England shall apply and have effect in
Brunei, in so far as it is applicable to the conditions of
Brunei.
43
Application of rules and orders of
Probate
Division of
High Court in England
Copy of will, etc.
Application of English law
44
Jurisdiction of the High
Court and
Probate
Officer
Probate and Administration
Nothing contained in this Act shall be deemed as ousting the jurisdiction of the High Court or of depriving the High Court of any jurisdiction which it possessed im-mediately before the coming into force of this Act.
The High Court and its predecessors shall have, and shall be deemed to have had ever since the coming into force of Enactment No. 1 of 1908, exclusive jurisdiction in all contentious probate matters, and shall have, and shall be deemed to have had ever since the coming into force of this
Act, concurrent jurisdiction with the Probate Officer in all non-contentious and common form probate business and in all other matters concerned with the administration of the estates of deceased persons in respect of which jurisdiction has been conferred upon the Probate Officer by this Act.
Probate and Administration
(Section 25)
FORM OF RETURN OF ESTATES OF INTESTATES
Return of estates of intestates for the half-year ending
, 19
Name of intestate
Dated the
(Signed)
Amount received on account of estate day of
Deductions for dis-bursements
Balance on closing account
'19
Disposal of balance
(Signed) .......................................... .
·'
Probate Officer 45
\
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