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TUTORIAL 2

QUESTION 1

Cedric Diggory died in December 2016, leaving an estate worth around


RM250,000. This included the house in which he lived (BearHill Cottage). At the
date of his death, Cedric had an outstanding personal loan of around RM5,000. All
of these debts are accruing interest.

Cedric had made a valid Will in 2002 and appointed his good friend Dolores
Umbridge to be the sole executor. Shortly before he died, Cedric had made a claim
on his contents insurance policy to replace his Samseng widescreen television,
which had been stolen during a burglary. The insurance company has just paid a
cheque to Dolores for RM5,000 in settlement. Dolores has used this money to pay
off the bank overdraft and the credit card debt.

Cedric is survived by his beneficiaries: Lily (his wife) and Tora (his son). Dolores
informed Lily that she does not wish to act as executor, either now or in the future.

Advise Lily on how she can proceed with the administration of Cedric’s estate.

Whether Dolores can apply for letter of representative?


- S.9
- S.16(1)(b) PAA – she needs to show that she belongs to the category.
-

Whether Dolores can renounce her role of executor?


 A will is not binding on the executor, it is not a contract.
 A person named as an Executor in the will does not have to accept the
office.
 They are free to renounce as long as they have not accepted the office.
 Acceptance of the office does not need to be formal and can be evidenced
by them taking out the Grant of Probate. (by conduct)
 Acceptance can also be done by acting in the Testator’s estate in a way
that indicates an intention to take on the role of Executor.
 However, an Executor cannot renounce only in part.
 Once the renunciation has been made, all of their rights in respect of the
executorship cease completely.
• S.7. A person who has been appointed as Executor by a will, loss his
rights in respect of the executorship, if he
• survives the Testator but dies without having taken out probate of the will;
• is cited to take out probate of the will and does not appear to the citation;
or
• renounces the probate of the will,

• The representation to the testator and the administration of his estate shall
devolve and be committed in like manner as if that person had not been
appointed executor.

Application

 In our case, Dolores has used the money from the insurance to pay off the
bank overdraft and the credit card debt of Cedric.
 Dolore has informally accepted the role of executor by acting/meddling
with Cedric’s estate. Her act constituted the acceptance of her role as
executor, hence, she is not allowed to renounce her executorship. Hence,
she must continue and finish administering Cedric’s estate in accordance
with the will as she had informally accepted the role.
 She had not extracted a grant of probate.

 Can Lily give citation and force Dolores to become an executrix.


 How did the insurance company know that Dolores is the executrix? When
the claim was made, Cedric was still alive.
 If Dolores cannot renounce, what should Lily do? Can Lily force Dolores to
continue her role as executor?
 Those who are not named cannot be compel.
 Executor de son tort can also cover those who had not obtain GP but then
intermeddles with the estate. GR, is a person can renounce his right to
represent. Few ways of renunciation : express, implied or constructive.
 Dolores did it to settle the debt and to stop the interest of the debt from
accumulating. There was no losses, instead she did this for the benefit for
Cedric’s benefit.
 Knowing that Dolores does not wish to take up the executor role, Lily may
apply Citation. S.9(1)-(2) of PAA.
 Lily  s.9(1) of PAA – she may apply for citation
 Dolores  S.9(2) – may chose to whether to enter appearance, if she did
not appear then she may choses to renounce.
 Those who had intermeddle but yet taken GP, one of the way is citation,
court may compel her to do so, citation could also be made alternatively to
pass over to another person to do so (better option)

Madam’s Answer
• GR : Section 8(1)-(2) of PAA, Section 7(c) PAA;
• Executor de son tort : Section 65, Holder v Holder (Its possible for a person
named in the will as executor who had intermeddle with the estate to be an
executor de son tort) (Azizie’s suggested answer)
• Citation : Section 9(1)-(2)  (more appropriate ways)
• Alternative : LAWA Section 16(b)

QUESTION 2

Fred Weasley has been appointed administrator of his father’s estate and is
awaiting to extract the grant of letters of administration. His late father had left the
sale transaction of one property uncompleted. The purchaser, Sirius had been
Fred’s father’s very good friend and allowed the payment of the purchase price to
be delayed. However, Fred noted that Siruis had made no attempt to complete the
sale even after a year since his father’s death. Fred intended to file a bankruptcy
notice on behalf of his father’s estate against Sirius.

Advise Fred.

• Whether Fred can file a bankruptcy notice on behalf of his father’s


estate against Sirius?
• An Administrator‘s authority and confirmation of the authority stems from
the LA and cannot act until then.
• P. Govindasamy Pillay & Sons Ltd v Lok Seng Chai (1991) 27 MLJ 91
that “it is only on extracting the grant of letters of administration that the
petitioner can be said to be duly clothed with the representative character
and to have acquired a title to the estate”

• Lord Parker’s observation in the case of S.M.K.R. Meyappa Chetty v


S.N. Supramaniam Chetty (1957) 1 WLR 157, that “An administrator on
the other hand derives title solely under his grant and cannot, therefore,
institute an action as administrator before he gets his grant. The law on the
point is well settled. ”
• Ingall v Moran [1944] KB 160, it was clear law that an action commenced
by a claimant purporting to be an administrator is a nullity when the
claimant does not have that capacity. A claimant in the capacity of
administrator derives the title to sue solely from the grant of representation
(unlike an executor, whose title to sue derives from the will). To bring a
claim on an intestate estate's behalf, the course of action was to first obtain
a grant of representation and therefore have title to sue.
• Ingall v Moran
• It is, I think, well established that an executor can institute an action before
probate of his testator's will is granted, and that, so long as probate is
granted before the hearing of the action, the action is well constituted,
although it may in some cases be stayed until the plaintiff has obtained his
grant. The reason is plain. The executor derives his legal title to sue from
his testator's will. The grant of probate before the hearing is necessary only
because it is the only method recognised by the rules of court by which the
executor can prove the fact that he is the executor.... An administrator is of
course in a different position, for his title to sue depends solely on the grant
of administration. It is true that, when a grant of administration is made, the
intestate's estate, including all choses in action, vests in the person to
whom the grant is made, and that the title thereto then relates back to the
date of the intestate's death, but there is no doubt that both at common law
and in equity, in order to maintain an action the plaintiff must have a cause
of action vested in him at the date of the issue of the writ.

• ANG HOI YIN v SIM SIE HAU (preferred view)


• Summary: In this case, letters of administration had been granted to the
plaintiff in the estates of SCK and SKM but they had not been extracted.
The plaintiff in her capacity as administratrix brought an action against the
defendant. The defendant entered conditional appearance and applied to
the court to set aside the writ for want of qualifying status on the part of the
plaintiff.
• Held: as the plaintiff had not extracted the grant of letters of administration,
she had no power to sue as administratrix and therefore the suit was a
nullity and must be set aside.

Cf Ruhani case
• Dato Ramesh a/l Rajaratnam v Datin Zaleha bt Adb Rahman (2014)
MLJU 484
• Even a person who has been granted Letters of Administration cannot sue
or be sued in respect of the estate or its liabilities until the grant has been
extracted.
• Only in very limited circumstances can the administrator maintain the
action and to do so the burden lies on him to demonstrate special
circumstances. [See Al Rashidy Kassim & Ors v Rosman Roslan [2007] 3
CLJ 361 ].
• The strict rule recently had been whittled down by the Federal Court to say
if there are 'special circumstances' the administrator will have locus to
proceed with the legal proceedings.
• When 'special circumstances' are relied on the burden will be on the
purported administrator to demonstrate on the issue of locus standi in the
proceedings or by way of affidavits as the case may be before obtaining
any orders from the court. In essence, those who rely on special
circumstances do not per se have a legal right such as administrator
lawfully appointed by the court, with the sealed order extracted.
• A bankruptcy proceeding cannot be said to be for the purpose of
protecting and preserving the deceased estates' assets.
• In light of Al Rashidy's case the courts will not ordinarily grant locus unless
it can be shown that it was necessary and expedient to protect and
preserve the interest of the deceased estate. In view of the statute which
deals with Probate and Administration of Estates, the threshold for the
purported administrator is very high to satisfy the locus standi test. It all
depends on the facts, circumstances, urgency of the matter, etc. The
reason why Letters of Administration must be obtained before
commencement of the action for the benefit of estate is well established
and the jurisprudence need not be set out here. However, now the Rules
of Court provides limited orders to be granted for the estate to be
represented in an action or pending action as the court may think fit.

Application
- As Fred is still awaiting for the extraction of the LA, he is not clothed with
the representative character of an administrator.
- As a general rule, as provided clearly in the case law, that an administrator
cannot bring an action on behalf of deceased’s estate until he had
extracted the LA.
- Hence, generally, Fred has no locus standi to bring an Bankruptcy action
against Sirius as he had yet to extract the LA.
- However, in the recent case of Dato Ramesh, it was provided that the
general rule does not apply if the claimant can show that there is special
circumstances. Special circumstances means that the action was
commenced to protect and preserve the deceased estate against
wrongdoing. However, the COA has made it clear that bankruptcy
proceeding cannot be said to be protecting/preserve the deceased estate.
Hence, applying to our case, the facts is similar, it would appear that Fred
cannot bring an bankruptcy proceeding against Sirius as it does not
constitute a SC. Thus, Fred could bring a BA against Sirius only after he had
extracted the LA.