Categories: PlanningPublished On: October 30, 20218.1 min read
Nur Hazirah Binti Abdul Razak

Have you ever wondered what happens to the estates of a deceased who died intestate (without leaving a will) and left no heirs to inherit? In such circumstances, the estates of the deceased would be classified as unclaimed estates and are deemed to be bona vacantia (ownerless property). According to Merriam-Webster, bona vacantia is a Latin term that refers to goods that are unclaimed and without an apparent owner.

Who will be responsible to administer bona vacantia? For non-muslim, the administration of bona vacantia is vested on Federal Consolidated Fund (YDPA Fund) for movable properties and State Authority for immovable properties. There are several provisions which govern this matter such as Distribution Act 1958, Civil Law Act 1956, Federal Constitution and National Land Code 1965.

For non-muslim who died without leaving a will, their assets will be distributed in accordance with Section 6(1) of the Distribution Act 1958. In a case that involves bona vacantia, we refer to Section 6(1)(j) of the Distribution Act 1958 which clearly states that if there is no person to take an absolute interest, the Government of Malaysia will be entitled to the whole of the personal estate of the deceased as bona vacantia. This is also provided by Section 24 of Civil Law Act 1956 which is stated as follows:

“When a right to the personal estate of any person who dies intestate without next of kin has accrued to the Government, the personal estate or the proceeds thereof shall form part of the Consolidated Fund and shall be appropriated as part of the Fund to such public purposes as the Yang di-Pertuan Agong from time to time thinks proper and directs:  Provided that the Yang di-Pertuan Agong may by warrant order the transfer of the whole or any part of such personal estate or the proceeds thereof to any person who shall establish to the satisfaction of the Yang di-Pertuan Agong any equitable or moral claim thereto.” 

Based on the provision above, Section 24 of Civil Law Act 1956 also empowers Yang di-Pertuan Agong to order the transfer of the whole or part of such personal estate to any person or persons who shall establish to the satisfaction of His Majesty any moral or equitable claim to the estate. This provision may be of assistance to an individual who is not recognised as a lawful beneficiary such as an illegitimate child of the deceased who died without leaving a will and heirs. However, it is noteworthy that they still have no legal right to claim any property of the deceased as it is only illegitimate children who fall under the provision of Section 11 of Legitimacy Act 1962 have the right to claim the property of the mother who died without leaving any legitimate children surviving her.

In addition, Article 97(1) of the Federal Constitution provides that all revenues and money raised or received by the Federation through any manners shall be subjected to the provisions of this Constitution and Federal Law. Then, the revenues and money will form one fund and are paid into the Federal Consolidated Fund.

What about immovable estates (landed property) without an owner? Section 351 of National Land Code 1965 provides that where any Land Administrator is satisfied that the owner of any alienated land has died and there is no party who seek probate, letters of administration or distribution of a small estate for that particular estate, such land will revert and vested in the State Authority. However, it does not take immediate effect upon the death of the deceased. It is crucial to ensure whether there is any other individual entitled to the estate of the deceased. Therefore, an application by way of originating summon must firstly be made to the court to ascertain such an issue. Within 1 year or any time limit extended by the Court, the land will thereafter revert to the State Authority

For instance, we can refer to the case of RE SOO-HOO HEM LENG [1963] 1 MLJ 38 where the applicants, as administrators, had filed an originating summons to ascertain whether the said Soo-Hoo Hem Leng died leaving any ascertainable next-of-kin and if there were none, whether his estate accrued to the Government of the Federation of Malaya. In this case, the Court held that Soo-Hoo Hem Leng had passed away intestate (without leaving a will) and left no heirs to inherit his estate. Thus, his estate was passed to the Federated Malay States Government as bona vacantia.

The estates of a non-muslim who died without leaving a will and any heirs to inherit will be classified as unclaimed estates and are deemed bona vacantia which will be administered by the Government or State Authority. Therefore, it is our responsibility to plan and manage the distribution of our property by making a will to ensure that our property will be distributed in accordance with our wishes instead of being left as unclaimed property upon our death.

Hazirah Razak graduated from Universiti Utara Malaysia with an LL.B (Hons) First Class. Hazirah is a former Pupil-in-Chambers at Messrs Hafarizam Wan & Aisha Mubarak. She is currently with Koha Digital, where she is advising on the legal aspects of the company's product and service development. During her free time, she enjoys watching movies based on true events to feel more connected to the history, real world and have different perspectives in life.