TOPIC 2: PERSONAL REPRESENTATIVE

PART 1
INTRODUCTION
- For the purpose of administration of deceased’s estates, the law incorporates the need for the
appointment of Personal Representative (PR).
- Once appointed, the PR shall have the authority to deal with the deceased’s estate.
- Their duties typically include collecting assets, settling any debts which Testator may owe &
distributing the assets.
- The PR will distribute the deceased's assets in accordance with the will (if there is one) or the laws of
intestacy (if there is no will). E.g. Distribution Act.
- The PR can be either:
i. Executor (male) / Executrix(female): a person appointed by the deceased in their will.
ii. Administrator / Administratrix (s): a person appointed by court, where there is no will, OR due to
failure of executor (s.16 PAA)
Section 2 of Probate and Administration Act 1959: “personal representative” means
- the executor, original/by representation, or
- administrator for the time being of a deceased person
The appointment of PR by
- the HC is governed by the ROC & PAA.
- the Small Estate Unit is governed by the SEDA (s.13(4)).
Corporation as PR
- Section 2: “Corporation” means Amanah Raya Berhad
- If a Corporation was appointed as Executor under a Will : Section 13(1): The Court may grant GP to
the Corporation
- The Corporation can apply for GP under Section 13 PTCA.
Phua Chui Har v Amanah Raya [2002] MLJU 512 - The appointment should not be ignored and the
wishes of the deceased should be fully adhered to.
If a person died intestate –
- Section 13(2): The Court may grant LA to the Corporation
- The Corporation can apply for LA under Section 13 PTCA
The appointment involves the grant of Letter of Representation in the form of:
i) Grant of Probate (GP)
ii) Letters of Administration (LA)
iii) LA with Will Annexed (LAWA) depending on the availability of the proving Executor and the Will.
- Depending on the availability of the Will and the proving Executor
Failure of Executors (proving Executor unavailable)
Section 16 Where
(a) no Executor is appointed by a Will;
(b) the Executor/all the Executors appointed by Will are legally incapable of acting as such, or have
renounced;
(c) no Executor survives the Testator;
(d) all the Executors die before obtaining Probate or before having administered all the estate of the
deceased;
(e) the Executors appointed by any Will do not appear & extract Probate
- Letters of Administration with the Will Annexed (LAWA) may be granted to such person as the Court
deems fit to administer the estate
Executor not in Malaysia
- Section 29(a): if the appointed Executor is not in Malaysia, he can grant Power of Attorney (POA) to
another person.
- The attorney can only apply for LAWA on behalf of the Executor
1. EXECUTOR/EXECUTORIX
• A person appointed under a Will:
- to execute the terms of the Will (carrying out Testator’s wishes); and
- administer the Testator’s estate accordingly upon his/her demise.
Section 2: “Executor” means a person to whom the execution of the last will of a deceased person is,
by the Testator’s appointment, confided (pass on)…
a) Appointment
Section 3(2): appointment of Executor may be express/implied. (in the Will)
(i) Express Appointment:
- The most common method of appointing an Executor is by an express appointment in the Testator’s
will.
- There is a specific clause naming them as the Executor/as an Executor to act in substitution of
another.
- E.g. “I appoint AB to be the Executor of my will, but should he decline or consider himself incapable of
acting, then YZ is to be my Executor”
In the Goods of Betts (1861) & In the Good of Foster (1871) - If it is not possible to identify the correct
executor from the will then the appointment will be void for uncertainty.
- Section 4(1): Min 1, Max 4 persons may be appointed as an Executor.
- Section 4(2): If the Beneficiary in the Will is an infant, min 2 Executors/a trust corporation must be
appointed.
• e.g. A businessman may appoint one executor to administer his personal assets and another to carry
on his business.
- The appointment may be absolute / conditional.
• e.g. ‘I appoint my son AB to by my executor if he has attained the age of 21 at the date of my death’.
- It may also be limited in some way so that the Executor can only act in relation to a certain part of the
estate such as business or literary assets.
If it is not possible to identify the correct Executor from the Will, the appointment will be void for
uncertainty.
Re Blackwell’s Goods [1877] 2 PD 72 - The will appointed an Executor generally, using term ‘one of
my sisters’ without stating which sister. Held failed to indicate which of his 3 sisters intended. Void for
uncertainty.
(ii) Implied Appointment:
- An Executor appointed this way is known as an ‘Executor according to the tenor of the will’.
- The appointment may be implied by the Will directing a person to carry out a certain duty that only an
Executor would do.
In the Goods of Cook [1902] - The clause ‘I desire KL to pay all my just debts’ was enough to appoint
KL an Executor according to tenor.
In the Goods of Adamson (1875) - In order to constitute one an executor according to the tenor of a
will it must appear, on a reasonable construction thereof that the testator intended that he should collect
his assets, pay his debts and funeral expenses, and discharge the legacies contained in such will.
(iii) Appointment by Court
Section 4(3): If the Beneficiary in the Will is an infant and the Will only appoint 1 Executor (not a trust
corporation)
(S.4(2) require min 2 Executors or a trust corporation).
- the Court may appoint one/more Executor in addition
- on the application of any person interested/of the guardian, committee/receiver of the minor, or
- of its own motion
Minor
Section 20(1): No representation shall be granted to a person while he is a minor.
- Hence, if a minor was named as Executor, he can only obtain the GP when he reaches 18 years old.
(an executor should be an adult)
Exception: Section 20(1): a minor can be named as executor under 2 circumstances:
(a) A minor is named as executor but can only obtain the grant of probate when he reached age of
majority
(b) If a minor is a sole executor, the court may grant Letter of Administration with Will Annexed (LAWA)
to his guardian, to hold the property on trust until the minor reached age of majority and obtain the grant
himself. (his Guardian can apply on his behalf and obtain LAWA).
O 71 r 27(1)(a) of ROC - Where the person who would be entitled to representation is an infant,
administration for his use and benefit during his minority will be granted to his parents jointly or his
statutory or testamentary guardian or any guardian appointed by a court
Unsound Mind
Section 21 - same with minor, no representation shall be granted to person with unsound mind
- If a person with unsound mind has been appointed as Executor under a Will as the sole Executor, the
Court may grant LAWA to whom the care of his estate has been lawfully committed /such person as to
the Court seems fit.
Executor not in Malaysia
Section 29(a): If the appointed Executor is not in Malaysia, he can grant Power of Attorney (POA) to
another person.
- The attorney can make application to the Court for LAWA on behalf of the Executor
In the Estate of ORMMSM Sevugan Chettiar, dec'd [1949] MLJ 254 - Willan C.J., held that the fact
that both the executors were out of the jurisdiction did not disentitle them to probate. He was of the
opinion that there was nothing in the then Probate & Administration Enactment which deprived an
executor out of jurisdiction of the right to have probate granted to him, unless the court acted under the
provisions of s.54 of the Enactment (now, with certain modifications, s.16 of the Probate &
Administration Act, 1959) and that s.41 of the Enactment (substantially s.29(a) of the Act was merely an
enabling provision which did not provide that where an executor was absent from the country,
administration of the deceased's estate could be granted only to an attorney of the absent executor.
Re Khoo Boo Gong, deceased [1981] 2 MLJ 68 - Held that the objective test of what amounts to
“sufficient cause” which justifies the revocation of the Grant of Probate or Grant of Letters of
Administration is the due and proper administration of the estate and the interests of the beneficiaries.

Drafting a Will:
- Appointment of Executor (or Executrix) to administer the Estate [max is 4].
- The name of Executor to be stated in full.
- Survivorship Clause: A survivorship clause is a clause in a Will which states that a beneficiary must
survive for a given period of time for the gift to take effect. If the beneficiary dies within the prescribed
survivorship period, the gift fails and is distributed to the testator’s other beneficiaries pursuant to the
terms of the Will.
• e.g. If the beneficiary dies shortly after the testator (e.g. 30 days) he/she is not entitled to the assets.
Acceptance/Proving
- Acceptance of the office does not need to be formal- (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.
- To show that a person has taken on the office by their actions it must be shown that the duties they
have carried out - have not been merely as the agent of another Executor & are more than ‘trivial
administrative acts’
James v Williams [2000] Ch 1 (CA) - On testator’s death the property was left to the defendant. The
plaintiff claimed her one-third interest in the property. The defendant argued that the plaintiff’s claim was
time-barred under the Limitation Act 1980. The court held that the deceased brother was an executor
de son tort since he knew that he was not solely entitled to the house and he held the property on
constructive trust. Consequently, the plaintiff’s claim was not time-barred.
Executor de son tort (executor in his own wrong)
- A person who has taken up office by intermeddling in the estate.
- Examples of intermeddling includes taking possession of the deceased’s assets, receiving or
releasing debts due to the estate, and writing to request payment of money due under the testator’s life
insurance policy.
- He is NOT the rightful executor because he deals with the administration of the Testator’s estate
i) without lawful authority; or
ii) without being lawfully appointed as Executor
- He can be sued by the Rightful PR and will be liable of his own wrongdoing / any loss to the estate
caused by him.
Section 65: If any person…
- obtains, receives / holds any movable/immovable property of a deceased person; or
- effects the release of any debt/liability due to the estate of the deceased,
- he shall be charged as executor in his own wrong to the extent of the property received/coming into
his hands, or the debt/liability released
New York Breweries Co. Ltd v Attorney General (1899) AC 62 - An English limited company
transferred a deceased American’s share and debenture in the company into the names of his
American executors, who had not obtained probate of the deceased’s will in England. The House of
Lords held that the company had made itself an executor de son tort because it had vested these
English assets of the deceased in persons who were not English personal representative.
Chain of Executorship
Principle: The Executor of a deceased Executor can act for estate of the original Testator.
Section 12(1): An Executor of a sole/ last surviving Executor of a Testator is also the Executor of that
Testator.
• E.g. A appoints B as his Executor. However, B died first. B died leaving a Will and appointed C as his
Executor. C can act as Executor of A’s estate.
• C may continue with the administration of the estate which may not have been completed and he
need not obtain letters of administration de bonis non.
- There will be a chain of representation if the Executor dies testate appointing his own Executor.
Proviso to Section 12: this provision shall not apply to an executor who does not prove the will of his
testator, and, in the case of an executor who on his death leaves surviving him some other executor of
his testator (i.e. not sole executor) who afterwards proves the will of that testator, it shall cease to apply
on probate being granted.
- The Chain of Executorship must not be broken.
Section 12(3) provides the situation when the chain is broken namely,
(a) an intestacy;
(b) the failure of a testator to appoint an Executor; or
(c) the failure to obtain probate of a will
- If the chain of executorship is broken, a LA de bonis non must be issued in the original, incompletely
administered estate. It will only be issued in relation to the unadministered part of the estate.
Re Ramanathan s/o AR A Nachiappan [1998] 2 MLJ 30 - The court held that the fact the vendor had
been named as the executrix in the will of Ramasamy meant that there was no break in the chain of
representation of the estate of the testator.
Death of Executor - Death of one of several Executors
Section 14(1): Where representation has been granted to more than one Executor, and one of them
dies, the representation of the estate shall accrue to the surviving Executors
Section 14(2): On the death of an executor, administration may be granted in respect of any estate not
fully administered
- LA de bonis non will only be issued in relation to the unadministered part of the estate.
Cease of Executorship - Cesser of right of executor to prove
Section 7: A person who has been appointed as Executor by a will, loss his rights in respect of the
executorship, if he
(a) survives the Testator but dies without having taken out probate of the will;
(b) is cited to take out probate of the will and does not appear to the citation; or
(c) 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.
Renunciation
- A person named as an Executor does not have to accept the office.
Syed Ali Redha Alsagoff v Syed Salim Alhadad [1996] 3 SLR 410 - Deceased died intestate in
Yemen and leave some property in Singapore.
- They are free to renounce as long as they have not accepted the office.
- 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.
Section 10: The renunciation shall preclude the person so renouncing from applying thereafter for
representation.
(i) Express Renunciation
Section 8(1): Any person who is/may become entitled to representation may expressly renounce his
right to the representation.
Section 8(2): Renunciation may be made: - orally by the person renouncing/his advocate, on the
hearing of any petition/probate action; or - in writing signed by the person so renouncing and attested
either by an advocate/by any person before whom an affidavit may be sworn. (e.g. Commissioner for
Oath & Magistrate)
- Once it has been filed it becomes binding and can only be retracted with the leave of the court.
(ii) Implied Renunciation
Section 8(3): If the Court is satisfied that any person who is /may become entitled to representation
has been personally served with the notice of hearing for the grant of representation, and
- the person fails to appear/file any objection, he shall be deemed to have renounced his right of
representation
(iii) Constructive renunciation – by Citation
- If an Executor neither accepts the office/renounces, the court has power to summon any person
named as an Executor in the Will to either prove/renounce probate of the Will.
- This power is exercised at the request of a person who would themselves be entitled to apply for a
grant of letters of administration if the Executor renounced.
- The Citation calls the Executor to appear and either accept or refuse probate of the will. If they do not
appear/they renounce, then their rights as an Executor cease.
Section 9(1): Any person having/claiming any interest in the estate of a deceased person, or any
creditor of a deceased person, may, without applying for representation, cause to be issued a citation
directed to the Executor, calling upon the person cited to accept/renounce the right.
Section 9(2): Any person so cited may enter an appearance to the citation, if he makes default in
appearance, he shall be deemed to have renounced the right; and if, having appeared, but he does not
proceed to apply for representation, the person so citing may apply for an order that the person cited
shall be deemed to have renounced his right thereto.
Revoking Appointment & Removal of The Executor
- If an Executor acts in a way which is detrimental to the interests of the Estate after LR has been
granted, his appointment may be revoked.
Section 34: Any probate/LA may be revoked/amended for any sufficient cause. However, there is no
definition of what is 'sufficient cause'.
Re Khoo Boo Gong, deceased [1981] 2 MLJ 68 FC in applying In the Goods of William Coreday held
that the test of what is a ‘sufficient cause’ is the due and proper administration of the estate and the
interests of the beneficiaries.
- It is an objective test.
In the Goods of William Loveday [1900] P 154 – Held that the real object which the Court must
always bear in view is the due and proper administration of the estate and the interests of the parties
beneficially entitled thereto
Tan Khay Seng v Tan Kay Choon [1990] 1 MLJ 51 - The applicant had failed to show 'sufficient
cause' as required by s 34 of the Probate and Administration Act 1959 to have the grant of letters of
administration revoked. 'Sufficient cause' would be the undue and improper administration of the estate
in total disregard of the interests of the beneficiaries.
- From the line of cases, it can be seen that the courts have considered the welfare and interests of the
beneficiaries of the estate as the paramount criteria in deciding whether or not there are any sufficient
cause to interfere.
Damayanti Kantilal Doshi v Jigarlal Kantilal Doshi [1998] 4 MLJ 268, COA - The sufficient cause
that has been proved:
i) Failure to take preliminary steps in administration
ii) Failure to render accounts
iii) Failure to take steps to prevent dissipation of the assets
- Absence from jurisdiction of an executor who cannot afterwards be found may be a sufficient reason
for revoking the grant.
Letterstedt (Now Vicomtesse Moutmort) v Broers & Anor (1884) 9 AC 371 - Lord Blackburn held
that It is quite true that friction or hostility between trustees and the immediate possessor or the trust
estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the
mode in which the trust has been administered, where it has been caused wholly or partially by
substantial overcharges against the trust estate, it is certainly not to be disregarded.
Mak Chee Chong v Rockwills Trustee Bhd [2016] 10 MLJ 124 - Where the relationship between the
beneficiaries has deteriorated to the extent that the executor or administrator can no longer effectively
administer the estate
Section 14 PTCA: Court my replace the existing Executor with the Corporation upon application by any
person beneficially interested if sufficient cause is shown.
2. ADMINISTRATOR
- A person appointed by Court to administer the property of the Testator upon his/her demise because
he died without leaving a Will/proving Executor.
Section 2: “administrator” means a person to whom administration is granted.
Failure of Executors (proving Executor unavailable):
Section 16. Where
(a) no Executor is appointed by a Will;
(b) the Executor/all the Executors appointed by Will are legally incapable of acting as such, or have
renounced;
(c) no Executor survives the Testator;
(d) all the Executors die before obtaining Probate or before having administered all the estate of the
deceased;
(e) the Executors appointed by any Will do not appear & extract Probate
- Letters of Administration with the Will Annexed (LAWA) may be granted to such person as the
Court deems fit to administer the estate
a) Appointment
- Administrator may be appointed to act alone/with others.
Section 4(1): Representation shall not be granted to more than 4 persons in regard to the same
property. Thus, max 4 persons may be appointed as an Administrator.
Section 4(2): If the Beneficiary is an infant, min 2 Administrators must be appointed.
Minor & Lunatics
S.20(1) & S.21: Representation shall not be granted to a person while he is a minor and to a person of
unsound mind.
Section 29(c): If the person entitled to LA is not in Malaysia, he can grant Power of Attorney (POA) to
another person; and
- The attorney can make application to the Court for LA on behalf of the Administrator
Factor for Court to consider in determining suitable Administrator
Section 30 provides that the Court shall have regard to
(i) Generally: the rights of all persons interested in the estate of the deceased person...
(ii) Specific:
- If there is a will annexed (LAWA), LA may be granted to a devisee (beneficiary of immoveable
property) or legatee (beneficiary of moveable property); and
Proviso: where the deceased died wholly intestate, administration shall be granted to some one/more
of the persons interested in the residuary estate of the deceased
Hence, it can be established that the most suitable person to be the administrator would be the
Beneficiary.
Re Estate of Chong Swee Lin; Kam Soh Keh v Chan Kok Leong [1997] 4 MLJ 464 - the application
to be administrator was refused due to the petitioner failure to satisfy the court that he was lawfully
married to the deceased. Hence, he was not one who could be said to be lawfully entitled to have an
interest in the residuary of the deceased’s estate.
In Re Wee Guan Ho Deceased; Frank Merrells & Others v Wee Chin Koon [1940] 1 MLJ 212 -
Under S. 12 and S. 24 s.s. 2 of the Probate and Administration Ordinance (Cap. 51) a grant of Letters
of Administration with the will annexed can only be made by the High Court or a Judge when sitting in
open Court. The Registrar has no jurisdiction to make a grant of Letters of Administration under this
section. A grant of Letters of Administration in any case cannot be made to a Petitioner who has no
interest in the estate.
- To determine who is best suited amongst the beneficiaries in accordance with the priorities of the
entitlement to the estate under the laws of intestate succession set out in s.6 Distribution Act 1958 (for
non-Muslim), namely:
a) Surviving spouse
b) Issues
c) Parents
d) Brothers & sisters
e) Grandparents
f) Uncles & aunts
g) Great grandparents
h) Great grand uncles & grand aunty

Corporation as Administrator
Section 81: if there is delay in applying letters of representation – LA can be granted to a Corporation
Section 15 PTCA:
- if a person has been granted with LA neglects to furnish security; or
- administrator failed to extract LA within reasonable time after an order has been made
- The Corporation may apply to set aside the order for the LA and instead grant a LA to them.
b) Renunciation
- A person named as an Administrator also free to renounce their appointment as long as they have not
accepted the office.
- Once the renunciation has been made, all of their rights in respect of the executorship cease
completely.
S.10: The renunciation shall preclude the person so renouncing from applying thereafter for
representation.
(i) Express Renunciation
Section 8(1): Any person who is/may become entitled to representation may expressly renounce his
right to the representation.
Section 8(2): Renunciation may be made:
- orally by the person renouncing/his advocate, on the hearing of any petition/probate action; or
- in writing signed by the person so renouncing and attested either by an advocate/by any person
before whom an affidavit may be sworn. (e.g. Commissioner for Oath & Magistrate)
• Once it has been filed it becomes binding and can only be retracted with the leave of the court.
(ii) Implied Renunciation
Section 8(3): If the Court is satisfied that any person who is /may become entitled to representation
has been personally served with the notice of hearing for the grant of representation, and
- the person fails to appear/file any objection, he shall be deemed to have renounced his right of
representation
- Constructive Renunciation & Citation (s.9) not applicable
c) After LR Has Been Granted
- Once the LR has been granted, the legal PR remains the representative of the estate until the grant is
revoked.
Stapleton v FCT (1955) 93 CLR 603 - It is well established that the amount of such a tax liability
cannot exceed the value of the deceased’s assets which form the property of the deceased estate,
provided no distribution of the assets of the estate have been distributed to beneficiaries. The rationale
for such a view is that the Legal Personal Representative is only appointed after the deceased had
derived such taxable income and therefore will not have had an opportunity to provide for such a tax
liability before that time
Section 5: Where administration has been granted in respect of any estate of a deceased person,
- no person shall have power to bring any action/to act as Executor
- in respect of the estate comprised in/affected by the grant until the grant has been recalled/revoked.
PART 2
Power and Authority of PR
- The Power & Authority of a PR commences upon his appointment.
i) By Will – executor
ii) By Court- administrator
- An Executor derives his legal title & authority from the Will. He can act even before the GP been
issued. GP only confirms/proves his authority.
Meyappa Chetty v Supramaniam Chetty [1916] 1 AC 603 : The deceased’s property vests in the
Executor from the date of the death
- An Administrator ‘s authority and confirmation of the authority stems from the LA. He cannot act until
the grant of LA has been issued.
S.39(1): An administrator’s title is derived solely from the grant of LA, pending which the estate of a
deceased dying intestate vests in the Amanah Raya Berhad.
S.39(2): Where a person dies instate, his personal property shall vest in the Administrator on the
making of an order for a grant of administration by the court.
1. Power to Sue/Right of Action
- PR is empowered to sue on behalf of the estate and to recover debt.
S.59: Subject to any other written law, a PR has the same powers to sue in respect of all causes of
action that survive the deceased, and may exercise the same power for the recovery of debts due to
him at the time of his death as the deceased had when living.
Meyappa Chetty v Supramaniam Chetty [1916] 1 AC 603 - An Executor may commence an action in
representative capacity at any time after the death of the testator, as the deceased’s property vests in
him from the date of the death
- However, he cannot obtain judgement until the GP has been extracted because the production of GP
is the only way he can prove his title.
Ingall v Moran [1944] 1 KB 160 - Goddard LJ: There is no doubt that where a deceased person leaves
a will and therein names an executor, the latter can institute actions before obtaining probate, though
the action may be stayed until the probate is granted. The reason for this is, no doubt, that the
executor’s title is derived from the will, which operates from the death of the testator, and all he has to
do is to prove that the will which names him as executor is the last will of the deceased. He has title to
sue but the court requires him to perfect his title and will not allow him to proceed till he has done. The
action will be stayed, but not dismissed.
- An Administrator may only commence an action in representative capacity once the LA have been
extracted since he derives his title from the LA.
- The LA cloaks the Administrator with authority to act on behalf of the deceased. Without that, the
administrator has no locus standi to sustain a suit on behalf of the deceased.
- In short, the plaintiff must have obtained LA at the point in time when the action was commenced.
Ingall v Moran [1944] 1 KB 160 - The P purported to sue in a representative capacity as administrator
of his son’s estate. The writ was issued in Sep 1942, but the grant of LA was only taken out in Nov
1942. Held administrator is in a different position, for his title to sue depends solely on the grant of
administration.
- The subsequent grant of LA did not operate retrospectively so as to validate the action.
- The doctrine of relation back of an administrator’s title to the intestate’s property to the date of the
intestate’s death when the grant has been obtained cannot be invoked so as to render an action
competent, which was incompetent when the writ was issued.
Meyappa Chetty v Supramaniam Chetty [1916] 1 AC 603 - Lord Parker held that an administrator
derives title solely under his grant and cannot, therefore, institute an action as administrator before he
gets his grant
P. Govindasamy Pillay & Sons Ltd v Lok Seng Chai [1961] MLJ 89 – Held it is only on extracting the
grant of LA that the petitioner can be said to be duly clothed with the representative character and to
have acquired a title to the estate
Mohammed Hanif v Chin Ah Bah [1974] 1 MLJ 128 - Even if the P had obtained and extracted the
grant after the issue of the writ, it did not relate back.
Comptroller of Income Tax v Van Tai Min [1965] 31 MLJ 255 - It is trite that only an administrator can
sue or be sued in relation to an estate of a deceased person.
Ang Hoi Yin v Sim Sie Hau [1969] 2 MLJ 3 - From the authorities it seems clear that the law on the
matter is the same whether a person sues as administrator or is being sued as such if he has not
extracted letters of administration at the commencement of action.
2. Power to Dispose / Sell Property
- A PR may want to dispose an estate
i) If there exists necessity that the real estate has to be converted into cash; or
ii) Insufficient of assets to pay debts and liabilities
S.60(3) allows a PR to charge, mortgage/dispose of all/any property vested in him, as he may think
proper.
Conditions:
(i) All PR must Consent
S.60(2): No sale, transfer, conveyance/assent in respect of immovable property shall be made without
the concurrence of all the PR of the deceased.
- The law does not require that a sale of the deceased’s estate must have the consent of the
beneficiaries.
- As long as the PR has acted for the benefit of the beneficiaries, he has the absolute discretion to sell
the property.
Sivamni a/l Raman v Paneer Selvam a/l Raman [2017] MLJU 1206 – Court applied principle from the
case of Ong Thye Peng v Loo Choo Ting & Ors [2008] 4 MLJ 31, FC which explained that as
personal representatives must act in the interest of all benefiaries, their duty is to ensure that the estate
of which they are trustee benefits as much as possible when they deal with trust property. The result is
that the obligation of executors and administrators towards the estate of which they are personal
representatives must be the same. This is because their primary duty is to protect the rights and
interests of the beneficiaries.

(ii) Leave of Court

- An Executor may without leave of court dispose of all/any property of the deceased as he may think
proper subject to restriction under the Will.
S.60(3) : A personal representative may charge, mortgage or otherwise dispose of all or any property
vested in him, as he may think proper, subject to any restriction which may be imposed in this behalf by
the will of the deceased, and subject to this section: Provided that an executor may dispose of any
property notwithstanding any restriction so imposed, if he does so in accordance with an order of the
Court.
- However, an Administrator may only deal in the property of the deceased subject to court’s directions
& permission (leave of court).
S.60(4): An administrator may not, without the previous permission of the Court
(a) mortgage, charge/transfer by sale, gift/exchange any immovable property for the time being vested
in him; or
(b) lease any such property for a term exceeding 5 years.
S.68(1)(a): If a person dies intestate, his immovable property shall be held upon trust by his PR, subject
to s.60, to sell the same.
Che Ah v Che Ahmad [1941] MLJ 126 - The duty of the court was to protect the interests of the estate
and the beneficiaries as opposed to the interests of the purchaser. The administrator must have acted
with proper prudence in exercising the overriding duty to obtain the best possible price.
Yap Yoke Luan v Ong Wee Tok [1984] 1 MLJ 23, FC - held that in an application for an order of sale
by the administration of the deceased estate, the duty of the court is to protect the rights of the
beneficiaries and not to consider the interest of the proposed purchasers. In exercising in discretion the
court will have to look into the fact and surrounding circumstances of the case ie, whether the proposed
sale was favourable to the beneficiaries and whether the administrators had acted with proper
prudence in exercising their overriding duty to obtain the best possible prove.
Tunku Ismail bin Tunku Mohd Jewa v Tunku Baharom bin Tunku Mohd Jewa [1982] 2 MLJ 44 -
The court is concerned that the price is a reasonable one at the time of hearing of approval not at the
time of offer was made.
Lim Liang Kee v Goh Bee Hwa Mabel [197] 5 MLJ 128 - Notwithstanding the fact that the interveners
as purchasers had paid the necessary deposit, the court must protect the rights of the respondents as
beneficiaries as opposed to the interests of the interveners as purchasers.
S.60(6): The disposal of property by a PR in contravention of s.60 shall be voidable at the instance of
any other person interested in the property.
- Despite this clear provision, the COA in Md Zubir bin Hamid (as beneficiaries of the estate of Hj
Saud bin Hj Deris and Muhammad Salleh bin Hj Deris, deceased) v Zahari bin Salleh [2017] 4
MLJ 351 held that the sale to be null and void.
S.61: Nevertheless, if a PR purchases any part of the property of the deceased, the sale is voidable at
the instance of any other person interested in the property sold.
3. Power to Enter into and Rescind a Contract
S.71(1) : every contract entered into by a PR in exercise of his powers of administering an estate shall
be binding on and be enforceable against & by the PR; and may be carried into effect/be
varied/rescinded by him.
(if involved contract of selling immovable property – must also fulfill the requirement under s.60 to be
binding and enforceable)
4. Power to Assent
Assent – transfer of legal ownership of land from the Estate of the deceased into the name of the new
owner. Assent is essentially a gift.
S.72(1): A PR may assent to the vesting in any person who may be entitled either as
beneficiary/trustee/PR of any immovable property to which the testator/intestate was entitled and which
devolved upon the PR.
S.72(2): In order for such assent to be valid, it must be sanctioned by an order of Court and made by a
transfer in the form required by any written law relating to the registration of title to land.
- Accordingly, before an estate may be transferred to the beneficiaries (assent), an application for a
vesting order from the HC must be made by the PR.
- The order shall be attached to the application for the transfer of the estate to the beneficiaries at the
Land Office.
5. Powers to Make Appropriation
- Appropriation is a process by which a PR set aside a specific asset in the residuary estate to meet in
full or in part, a beneficiary’s entitlement or interest.
- This power must be exercised with the consent of the Beneficiaries.
- It was imperative that the appropriation would not prejudice the interest of the other beneficiaries
- If a person is entitled to a legacy under a will, it may be that they would prefer to have something else
instead.
- They might rather have some other asset belonging to the deceased transferred to them either in full
or partial satisfaction of the legacy. For example:
i) C is due to inherit RM1,000 wishes instead to receive a painting worth RM1,000;
ii) G who is left RM5,000 in the will may wish to accept a car worth RM3,000 together with RM2,000
cash.
- However, a PR cannot appropriate an asset which has been specifically left to another beneficiary,
and should try to follow the wishes of the Testator.
S.74(1): The PR may appropriate:
- any part of the movable/immovable property of the deceased
- in the actual condition or state of investment
- towards satisfaction of any legacy bequeathed by the deceased
- as to the PR may seem just & reasonable
- according to the respective rights of the persons interested in the property of the deceased
• Provided that—
(a) an appropriation shall not be made under this section so as to affect prejudicially any specific devise
or bequest;
6. Power to Appoint Trustees of Minor’s Property
S.75(1): If there is a minor who is absolutely entitled (under the will/on the intestacy) to a
devise/legacy/the residue/any share therein, and the devise, legacy, residue/share is not been
devised/bequeathed to trustees for the minor under a will the PR may appoint a trust corporation / two
or more individuals not exceeding 4 (may include the PR), to be the trustee of the devise, legacy,
residue/share for the minor, and subject to s.60, the PR may execute/do any assurance/thing requisite
for vesting the devise, legacy, residue/share in the trustee so appointed
7. Power to postpone distribution
S.77: A PR is not bound to distribute (i.e. can postpone) the estate of the deceased before the
expiration of one year from the death.
- Hence, the PR does not have to pay a legacy immediately, and this gives time to the PR to carry out
his duties.
- This provision does not mean that the PR must wait for 1 year before paying a legacy.
S.68(3): During the minority of any beneficiary and pending the distribution of the estate of the
deceased, instead of paying the funds to the trust Corporation the PR may invest the residue of the
said money, or so much thereof as may not have been distributed in any investments for the time being
authorized by any written law for the investment of trust money, with power, at the discretion of the PR,
to change the investments for others of a like nature.
Doctrine of relation back
- Under the relation back doctrine, any act that a person taydoes on behalf of the estate becomes valid
after he/she are appointed as PR, if such actions are beneficial to the estate.
- The title of the legal LR is deemed to relate back to the date of death, once the grant is made.
Mills v Anderson [1984] 1 QB 704 - Certain acts done by the legal PR between death and the grant
can be validated, namely dispositions in the course of the administration and dispositions for the benefit
of the estate.
- The test is an objective test without reference to the subjective intentions of the administrator when
performing the act.
Caudle v LD Law Ltd [2009] 2 All ER 1020 - The claimant sought to take out letters of administration
in the estate, and needed documents held by the defendant who claimed a lien over necessary
documents for an unpaid legal services bill. The defendants had replied that until the claimant had
taken out letters of administration, he had no standing to require delivery of the papers. Held the
claimant did not yet have standing to make the demand made.
Exception – Legal Proceedings
- The doctrine of relation back cannot validate that which was a nullity or incompetent at the time it was
done.
Ingall v Moran [1944] 1 KB 160 - An administrator is, of course, in a different position, for his title to
sue depends solely on the grant of administration. 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.
Mohammed Hanif v Chin Ah Bah [1974] 1 MLJ 128 - Even if the P had obtained and extracted the
grant after the issue of the writ, it did not relate back.
Duties and Liabilities of PR
- Once the letter of representation is granted to the PR, he may proceed with the duties of the
administration of the deceased’s estate.
- KS Rajah JC (as he then was) provided a succinct summary of the duties of executors in Lee Yoke
San and another v Tsong Sai Sai Cecilia and another [1992] 3 SLR(R) 516:
- “An executor “calls in” the estate that collects & converts the assets into cash, and pays all the
funeral and testamentary expenses, estate duty, debts and legacies. When he has done this, he
has discharged his duties as an executor. Then he steps into the shoes of a trustee. He owes a
fiduciary duty to the beneficiaries, whether he is an executor or trustee.
The duties of the PR
General: Fiduciary duty
Specific:
i. Call in assets – determine the extent of the assets and liabilities of the deceased
ii. Pay debts and liabilities
iii. Distribute the residue
iv. Keep proper accounts of the administration
A) General Duty
- A PR is in a fiduciary relationship with the beneficiaries.
AG v Cocke [1988] Ch414 - It is settled law that the executor of a will owes the beneficiaries under the
will fiduciary duties.
- Hence, he has a fiduciary duty to the Estate.
- This means he must:
i) administer the estate diligently (due & proper care) and reasonably
ii) remain honest, impartial, objective; and
iii) act in the best interests of the Estate at all times.
- A PR must act diligently and as reasonably as he can in realizing the assets and distributing them.
- Although there is no firm rule that the distribution must be done within ‘the executor’s year’, but he is
required to be as expeditious in administering the estate as he would be in attending to his own
business affairs.
- The objective test of a reasonable man would be applied in determining the efficiency or competency
with which the PR has handled the estate in question.
- It is also the PR’s foremost duty to act in the best interests of the beneficiaries when carrying out his
duties or exercising his powers.
- Where a PR is to act for the benefit of a class of persons, such as multiple beneficiaries of a will, he
must advance their common interests, holding the scales evenly among the beneficiaries, and act with
detachment and impartiality.
B) Specific Duties
i). Calling in assets
- First and foremost, a PR is obliged to “call in” the deceased's real & personal estate.
- In other words, he has to determine the extent of the assets & liabilities of the deceased, and then act
diligently & reasonably in realising the assets.
- If the deceased died testate, his Will would be a guide as to the assets that he owned.
- Having identified assets in the estate, it is necessary then to determine their value for the purpose of
probate, insolvency valuation.
- The prima facie rule is that the PR should get in all the assets within a year from the date of the death
which is known as the “executors’ year’
- In performing this duty, PR will exercise his power
- to sue and recover debt
- to dispose of property
- to enter into and rescind a Contract
ii. Paying debts & liabilities
- It is the duty of the PR to pay off the debts of the deceased.
S.67(1)(a) provides that the property of a deceased person and the property of which a deceased
person in pursuance of any general power disposes by his Will, are assets for payment of his debts &
liabilities,
- any disposition by will inconsistent with PAA is void as against the creditors;
- and the Court shall, if necessary, administer the property for the purpose of the payment of
debts & liabilities.
In Re Tankard, Tankard v Midland Bank Executor and Trustee Company, Limited [1942] 1 Ch 69
summarised this duty in the following terms:
“ ...it is the duty of executors, as a matter of the due administration of the estate, to pay the debts of
their testator with due diligence having regard to the assets in their hands which are properly applicable
for that purpose, and in determining whether due diligence has been shown regard must be had to all
the circumstances of the case...The duty is owed not only to creditors, but also to beneficiaries, for the
ultimate object of the administration of an estate is to place the beneficiaries in possession of their
interest and that object cannot be fully achieved unless all debts are satisfied”
- Debts are normally paid after the PR has called in all the assets and obtained the LR.
- If the estate is a large one, it would be prudent for the PR to invite Creditors through advertisement to
submit their respective claims against the Estate. (s.32(1) Trustee Act 1949)
- A PR who has protected himself by such advertisement, may at the expiration of the time fixed in the
notice, distribute the property to which the notice relates.
- The payment of debt shall be made: S.68(2): Out of the net money arising from the sale & conversion
of the properties & out of the ready money of the deceased.
S.68(2) also states that the payment shall also include all funereal and testamentary & administration
expenses.
- There is no statutory definition of Testamentary and Administration Expenses.
Sharp v Lush [1879] 10 Ch D 468 - It refers to “expenses incident to the proper performance of the
duty of the executor”
- It includes, but are not limited to:
(a)The costs of obtaining a grant of representation;
(b)Legal costs occasioned in commencing a suit to obtain assistance of the court; and
(c)The costs of taking the advice of a solicitor & counsel outside the administration suit as to the
distribution of the estate
(d) Cost incurred in the collection, maintenance or disposal of the deceased’s assets
(e) payment of other liabilities arising since the date of death such as rent
- Time for payment of debts:
Re Tankard, tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69 - It is the duty of
executors, as a matter of the due administration of the estate, to pay the debts of their testator with
diligence having regard to the assets in their hands which are properly applicable for that purpose...
Due diligence may require that payment be made before the expiration of the year, but the
circumstances affecting the estate and the assets comprised in it may justify non-payment within the
year, the onus is thrown on the executors to justify delay.

Saraspathy v Kanagasundram[1962] MLJ 422 - If the cost of the estate is increased without cause
e.g. interest accruing when there were ample funds from which the debt could be discharged, the PR
will be personally liable.
iii. Distributed the Residue
- After the payment of debts & liabilities, the PR shall distribute the remaining assets according to the
terms of a Will (if any) / instate succession in accordance with Distribution Act 1958 and faraid.
- The PR has power:
- to postpone distribution
 - to appoint a trustee to a minor’s property
- to assent and to appropriate the property
- Prior to the distribution of the deceased’s assets, it would be prudent for the PR to protect himself by
giving notice in the advertisement of his intention to make a distribution of the assets, and requiring any
person interested to send particulars of his claim in respect of the assets within a stipulated period that
is not less than 2 months.
- If the necessary advertisements are placed, the PR will be at liberty after the expiration of the time
specified in the advertisements to distribute the assets, having regard only to the claims of which he
has notice.
iv. Keep Proper Accounts of the Administration
- It is also the duty of the PR to keep proper accounts of the administration of the estate that they are
dealing with.
- If called upon by the beneficiaries to render accounts, they are obliged to furnish such accounts and
allow the beneficiaries to inspect the accounts.
S.62: The PR shall, when lawfully required so to do, exhibit, by affidavit filed in the Court, a true &
perfect inventory & account of the movable & immovable property of the deceased, and the Court shall
have power to require PR to bring in inventories.
Chung Kok Yeang v PP [1941] MLJ 163 - The accounts would be required to show the monies and
assets received by the PR and how he had dealt with these monies and assets.

Foo Jee Seng v Foo Jhee Tuang [2012] 4 SLR 339 - Where a testator had bequeathed his property to
his wife and children to be held by executors and trustees under a trust for sale with the absolute
discretion to postpone the sale for so long as they though fit, held that a court could nevertheless
intervene in his exercise of discretion and further that it had not been intended that the discretion be
exercised indefinitely even to the detriment of the beneficiary
- It is a requirement before he winds up the administration that he submits accounts for the
beneficiaries‘s perusal and approval.
Discharge as PR
- The PR would conclude the administration by
- rendering proper accounts; and
- obtaining from all beneficiary’s acknowledgment that they have received their respective
shares.
Undistributed funds
S.86(1): if upon the conclusion of the administration of the estate of a person dying testate/intestate,
there remain in the hands of any PR funds of which he is unable to dispose immediately by distribution
in accordance with law by reason of the inability of the person entitled to give a discharge, through lack
of legal capacity/otherwise, or by reason of any other cause which to the Corporation shall appear
sufficient, The PR may, if the Corporation consents to accept the same, pay the funds to the
Corporation
S.86(2): The receipt of the Corporation may be accepted by the PR and shall constitute a full and
sufficient discharge in respect of those funds
Liability of the legal PR
- Protection of persons acting on probate/administration
S.64(1): Every person making/permitting to be made
- any payment/disposition in good faith under probate / letters of administration
- shall be indemnified & protected in so doing
- A legal PR has 2 capacities at law:
i) personal capacity; and
ii) capacity when acting on behalf of the estate.
Personal liability- No indemnity
- PR may be personally liable to refund the loss occurring from his negligence & maladministration.
• E.g. breach of trust and converts to his own use any part of the moveable/immovable property of the
deceased.
- The unscrupulous PR could also be charged for CBT under s.405 of PC.
- His own PR will also be liable if he dies.

S.66: if a PR/ Executor de son tort wastes/converts to his own use any part of the movable/immovable
property of the deceased, and dies, his PR shall be liable & chargeable in respect of the
waste/conversion, in the same manner as the defaulter would have been if living
Fairhall v Fairhall (1871) LR 7 Ch App 123 - A person who lends money to a legal PR lends it to them
personally and not to the estate; the contract is with the legal PR
Indemnity
- Where the legal PR acts for the purposes of realisation of the estate then a right of indemnity may
exist. (personally, liable but can claim indemnity)
- A legal PR who commences litigation on behalf of the estate can obtain an indemnity as to costs.
Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 - It is common ground that a trustee who in
discharge of this trust enters into business transactions is personally liable for any debts that are
incurred in the course of those transactions. However, he is entitled to be indemnified against those
liabilities from the trust assets held by him and for the purpose of enforcing the indemnity the trustee
possesses a charge or right of lien over those assets