WILLS, LA AND BEYOND

Greetings fellow readers, today's topic would be an unavoidable chapter in everyone's life which is DEATH. Please do not be startled at the notion of the topic, to be much more precise, I would actually like to explain on the legal ramifications of one's death and demise.

After the period of mourning for aa person's death, the family member of the demised would then gather around and discuss the division of the demised estate and property if there's any.

The aim if today's sharing is just to provide a simple explanation of the procedure and the legal aspects of dealing with a deceased person's property.

1. Firstly, a deceased person's estate can be divided into two main headings which are "Intestate" and "Testate".

2. "Intestacy" means a person dies without leaving a will, whereas "Testate" means a person dies with a will.

3. Now let us discuss an Intestate Estate first. In order for the family member of the deceased to administer and divide the estate of the deceased, they must first obtain a Letter of Administration from the High Court (Do note that there are other available avenues such as Amanah Raya, Land Offices). The Letter of Administration is basically a document that needs to be obtained from the Court after filling out an Originating Summons.

4. A Testate Estate, on the other hand, requires the executor/executrix named in the Will to obtain a Probate document from the Hugh Court to enable them to dispose and distribute the property and estate of the Deceased based on the terms and wishes in the Will of the deceased.

5. Now, let me clarify a salient point of law. In a Will, the deceased person can list out in anyways or manner he or she decides to distribute their belongings or property. The Law will the give effect to the intention and wishes of the Deceased since he or she can no longer appear in court and testify as t their wishes. Thus the Court will carefully examine the content and the nature of the Will to give it effect.

6. The next issue to be addressed. How do we know in which portion is the estate of the deceased to be distributed if he or she dies without a will?

The Law does not leave this unanswered.

Section 6 of the Distribution Act 1956 provides for the distribution of an intestate's estate as follows:-

1. should the intestate be survived by a spouse, issue, and parent or parents, the surviving spouse shall be entitled to 1/4 of the estate, the issue shall be entitled to 1/2 of the estate and the parent or parents the remaining 1/4;

2. should the intestate be survived by a spouse and a parent or parents, the surviving spouse shall be entitled to 1/2 of the estate and the parent or parents shall be entitled to the remaining 1/2;

3. should the intestate be survived by a spouse and issue but no parent or parents, the surviving spouse shall be entitled to 1/3 of the estate and the issue the remaining 2/3;

4. likewise, should the intestate be survived by issue and a parent or parents, the surviving issue shall be entitled to 2/3 of the estate and the parent or parents the remaining 1/3; and

5. lastly, should the intestate be survived by EITHER a spouse, issue, or parent or parents, then either of the surviving spouse, issue, or parent or parents shall be entitled to the whole of the estate accordingly.

7. The above sharing provides a general and basic understanding of the legal systems and procedures involved in the administration of the deceased estate and belongings.

Joel Ruben John
Advocate & Solicitor
of the High Court of Malaya

*For legal advice and consultation email me at joelruben.law@gmail.com or Whatsapp me at 016-6953193.

WHAT THE BIB !!!

Hello readers, the image of a lawyer is often portrayed as a person wearing a white and black colored combination attire with a gown and a bib. 

What is a bib and what are the history and significance of it.

A bib which is also known as a jabot is a white piece of cloth made out of linen or cotton is worn around the neck of a lawyer in court.

Besides serving as one of the identities of a lawyer, a bib also has a rich historical background.

It is said that the bib actually represents the two stone tablets handed down to Prophet Moses by God of the Israelites.

Jews, Christians, and Muslims alike believe that Prophet Moses is one of the greatest prophets that God commissioned to save the Israelites from slavery and torture by  Pharaoh Ramses. 

The stone tablets handed down to Moses by God are also known as the 10 commandments which are simply God's commandment to the Israelites. 

Later on, the Jews derived all the religious laws and practices from these 10 commandments. These commandments acted as a written constitution for them in which laws are derived from in respect to the Jewish people.

Why are the Ten Commandments plays such an important role in the growth of law and its jurisprudence?

To answer this one should post a question to themselves.

WHY DO WE OBEY THE LAW?

DO WE OBEY IT BASED ON OUR OWN MORAL CONSCIENCES?

WOULD WE STILL OBEY IT THERES NO PUNISHMENT IMPOSED? 

WHO DO WE TURN TO AS OUR MORAL GUIDE?

Perhaps these simple questions would lead to a better understanding of the law and its science.

Humanity has always struggled to find its moral compass and focal point throughout the ages and still is.

Many Jurists have offered some explanation to this conundrum but again its always open for arguments and new thoughts and interpretation. 

Man-made laws are often intertwined with morality, one cannot run from it. 

But the question arises yet again. Who determines what is moral and not.

Surprisingly the ancient Israelites never faced this issue as they believe that their Jewish Laws were Heaven-sent.

So the next time a legal practitioner wears his or her bib before appearing in open Court, feel free to tickle your mind with the above histography. 😃

Joel Ruben John
Advocate & Solicitor
of the High Court of Malaya

Understanding Plea Bargain. A beginners guide.

In the realm of the Criminal Justice System, there is a term known as 'Plea Bargain' which simply means when an arrangement is made between the prosecutor and the defendant whereby the defendant pleads guilty to a lesser charge or come up with a different arrangement which practically makes the life of the prosecutor a little bit easier in exchange for a more lenient sentence or an agreement to drop other charges.

For example, when a person is charged on account of robbery or stealing, he or she then agrees to the return of the stolen property or goods, the prosecutor can then weigh the fact that the stolen goods to be returned and at the discretion of the prosecutor, the prosecutor then may drop the charges or offer a much lighter sentence. But more often than not the accused will still be tried for the charge placed him. The plea bargain was not meant to be an automatic 'out of jail pass'.

This is mainly due to the logic that, stolen goods returned or not a criminal act has already been committed and the return of the stolen goods does not negate the act done. After all, isn't it in the interest of Justice for a stolen property or goods to be returned back to the rightful owner?

The criminal justice system amongst many other functions serves as a deterrent tool for a menacing society. If for example an accused can simply walk free for the sole reason that he or she has already returned the stolen property or goods then the function of the criminal justice system as a tool of deterrence becomes incumbent. The accused who was released may then go ahead and commit the same crime or worse based on his previous experience of escaping sentence.

Further, I would like to offer an analogy. Can someone escape punishment just because they have returned back for example a stolen car? Absurd isn't it?

We also must take into consideration the fact that instead of battling a difficult case and risking not being able to establish the guilt of a Defendant, the prosecutor might adopt an approach whereby the prosecutor feels it might be better for me to get back half of the stolen goods or property than none. But again we must be reminded of the core principles of the criminal justice system that the law must apply without fear or favor and in the absolute interest of Justice.

This might or might not set a bad precedent and it is up to the course of law to decide on it. We shall wait and see.

Joel Ruben John

LLB (Hons) (London)

CLP

Advocate & Solicitor of the High Court of Malaya

WHAT IS REMAND? A BEGINNERS GUIDE

Good Morning 

Since I have some time left before the Magistrate enters, allow to me share a simple yet often misunderstood and misconceived legal issue here in Malaysia. 

WHAT IS REMAND?

A suspect can only be detained for the purpose of police investigation in the police station for not more than 24 hours.

If the police investigation cannot be completed within this period and the police wish to detain the suspect beyond 24 hours, an application for further detention must be made within 24 hours to the Magistrate’s Court.

A Magistrate is a judicial officer who has the power to make a remand order.

A person is “remanded” when the Magistrate gives a remand order to extend the suspect’s detention beyond 24 hours.

The purpose of remand is to give more time to the police to complete the investigation and to decide whether there is enough evidence to charge the suspect for the suspected offense. The police must make the remand application without unnecessary delay.

At the remand stage, a suspect is still considered innocent.

A Magistrate at the remand hearing must strike a balance between the rights of an individual and the interest of the state. 

Joel Ruben John 

LLB (HONS) (LOND), CLP 

ADVOCATE & SOLICITOR OF THE

HIGH COURT OF MALAYA