Jigarlal Kantilal Doshi v Amanah Raya Bhd (administrator of the estate of Kantilal Prabhulal Doshi, deceased) [2018] supp MLJ 211

Jigarlal Kantilal Doshi v Amanah Raya Bhd (administrator of the estate of Kantilal Prabhulal Doshi, deceased) [2018] supp MLJ 211

Court of Appeal (Putrajaya)

Grant of Probate

Facts

1.     Mr Jigarlal, the Appellant in this case is the beneficiary of the estate of Kantilal Prabhulal Dashi (“Deceased”) who seeked to claim his right under such estate.

2.     Amanah Raya Berhad, the Respondent is the official administrator appointed by the High Court to administer the estate of the Deceased.

3.     On 5 February 2008, the Appellant had commenced a suit against the Respondent after the High Court issued a grant of probate to the Respondent on 4 January 2008.

4.     The Appellant contended that the appointment of the Respondent must be revoked on the ground that the Respondent had neither applied for nor extracted the grant of letters of administration to the estate.

5.     Nonetheless, the Appellant’s application was dismissed by the High Court and affirmed by the Court of Appeal.

6.     The Appellant filed leave to appeal to the Federal Court in which the Court allowed the following question of law:

Issue

1.     Whether the Respondent could petition for grant of probate under the Public Trust Corporation Act 1995 when it was appointed only as an administrator?”

2.     Whether the Respondent may be appointed as the executor of the estate of the deceased?

Ratios

1.     Section 13 of the Public Trust Corporation Act 1995 (“Act 532”) provides as follow:

“13 Grant of Probate and letters of administration to corporation

(1) The Corporation may, on its own application or on the application of any other person, be granted probates of will or letters of administration by the Court.”

2.     In simple words, the Respondent may either be appointed as an executor or an administrator as per Section 13 of Act 532.  This is important as administrator is empowered only to deal with the property of the Deceased unlike the wider powers of an executor.

3.     The appointment of the Respondent as the administrator is pursuant to the order of the High Court in which affirmed by the Court of Appeal.

4.     It is worth noting that that the order of the High Court is based on the application of the Appellant to revoke the grant of the probate granted to the then executrix and executor.

5.     The Court took note the findings of the Court of Appeal as follows:

“What is patently clear from the ‘Geran Probet’ is that other than the case number and the heading/title, nowhere in the body of the ‘Geran’ is the appointment of the respondent as an executor mentioned. On the contrary, the ‘Geran’ makes it clear that it is granted pursuant to the High Court order as affirmed by the Court of Appeal, appointing the respondent as ‘Pentadbir’ or administrator. In the circumstances, it cannot be said that there had in fact been a grant of probate to the respondent.”

[Emphasis added]

6.     The Court is of a different view from the Court of Appeal that the application for the grant of probate was made by the Respondent acting pursuant to its powers under Section 13 of Act 523.

7.     The Court held that the Respondent should have applied for a grant of administration instead for a grant of probate and that the Respondent had been in breach of the order of the Court of Appeal.

8.     The salient point highlighted by the Court in delivering the judgment is that the basis of appointment of the Respondent was pursuant to the application by the Appellant to revoke the appointment of the then executrix and executor and not as per the findings of the Court of Appeal that the grant was substantially a grant of letters of administration with will annexed since the Respondent was named therein as the administrator

Decision

The Federal Court allowed the appeal with costs to the Appellant in which the Amanah Raya Berhad could not petition for the grant of probate when it was appointed only as an administrator.  The grant of probate given to the Amanah Raya Berhad was a nullity.

Key Take Away

1.    In Malaysia, the procedures for estate administration may be seen in two categories which are grant of probate and letter of administration.

2.    In applying for the grant of probate, the deceased must left a valid will.  In the absence of will or executors, the estate distribution is done by way of letter of administration.

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