Chapter 3 - Grants of Representation

Question 1

GRANTS OF REPRESENTATION

Overview

Answer 1

1) Importance of grant of representation
2) Types of grant of representation
3) Who can obtain grant of representation
4) Where can obtain grant of representation

Question 2

IMPORTANCE OF GRANT OF REPRESENTATION

Overview

Answer 2

1) Indemnity
2) Locus standi
3) Transaction of property
4) Protection of the interest of the beneficiaries

Question 3

INDEMNITY

Answer 3

S.64 PAA

• payment or disposition permitted or made in good faith under probate or LA is indemnified.

Question 4

LOCUS STANDI

Answer 4

Lee Ngan Fong & Ors v Gan Bo Tan:

• Parties must have sufficient locus to challenge a will.

Question 5

TRANSACTIONS OF PROPERTY

General rule

Answer 5

Chay Ching Hwa v Seah Mary:

• Any transaction made without grant of representation is invalid.

Question 6

TRANSACTIONS OF PROPERTY

Exception 1 - Special Circumstances

Answer 6

Al-Rashidy Kassim & Ors v Rosman Roslan

• existence of special circumstances may equip the administrator with locus to proceed w/o extracting the LA;
• e.g. necessity to protect the interest of the state.

Question 7

TRANSACTIONS OF PROPERTY

Exception 2 - Deceased was a party to a legal action

Answer 7

Yong Siew Choon v Kerajaan Malaysia

• Allowed under O.15, r.6A but all the requirements under the Rules must be strictly complied;
• OTF, non-compliance renders the action a nullity.

Question 8

PROTECTIONS OF BENEFICIARIES

Overview

Answer 8

1) Protection of interest in the property

2) Protection of agreement entered by beneficiary

Question 9

TYPES OF GRANT OF REPRESENTATION

Answer 9

1) Grant of probate:
- Grant of probate
2) Letters of administration:

• LA
• LA with will annexed
• LA de bonis non
• LA pedente lite

Question 10

WHO CAN OBTAIN GRANT OF REPRESENTATION

Overview

Answer 10

1) Who can obtain grant of probate

2) Who can obtain letter of administration

Question 11

WHO CAN OBTAIN GRANT OF PROBATE

Answer 11

S.3(1) PAA

• probate may be granted to an executor appointed by will;
• executor may be appointed expressly or impliedly.

Question 12

WHO CAN OBTAIN LETTER OF ADMINISTRATION

Overview

Answer 12

1) Grant of LA

2) Grant of LA with will annexed

Question 13

GRANT OF LA

The law & factors to be considered

Answer 13

S.30 PAA - factors for consideration:

• rights of all persons interested in the estate of the deceased person;
• proceeds of sale thereof.

Question 14

GRANT OF LA WITH WILL ANNEXED

Overview

Answer 14

1) When there is no proven executor;
2) Guardian of an unsound mind;
3) When there is absent executor;
4) Guardian of a minor executor

Question 15

GRANT OF LA WITH WILL ANNEXED

When there is no proven executor

Answer 15

S.16(1) PAA:

• LA with will annexed may be granted to person as the Court deems fit to administer the estate.

Question 16

GRANT OF LA WITH WILL ANNEXED

Guardian of an unsound mind

Answer 16

S.21 PAA:

• LA with will annexed may be granted to the guardian of an unsound mind which the estate has been lawfully committed.

Question 17

GRANT OF LA WITH WILL ANNEXED

When there is absent executor

Answer 17

S.29(1) PAA:

(1) executor appointed by will

• LA with will annexed may be granted to a duly authorized attorney of the absent executor.
• This is limited until he obtains probate for himself.

(2) executor granted with LA
- LA with will annexed may be granted to a duly authorized attorney, limited as above.

Question 18

GRANT OF LA WITH WILL ANNEXED

Guardian of a minor executor

Answer 18

S.20(1) PAA

• LA with or without will annexed may be granted to the guardian;
• This is limited until the minor shall obtain a grant himself.

Question 19

WHERE CAN OBTAIN GRANT OF REPRESENTATION

Answer 19

1) Grant of probate
- Apply to High Court
2) Grant of LA

• Apply to High Court;
• Apply to Amanah Raya Berhad;
• Apply to Land Office.