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  • ESTATE ADMINISTRATOR ACTION BEFORE PROBATE

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    Khairun Nisaazwani
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    1. An administrator or executor cannot sue or be sued before obtaining a grant of probate or letters of administration from the court. 2. However, there are some exceptions where an administrator may have the capacity to sue, such as when special circumstances require preserving an estate's assets from being lost or damaged. 3. An executor's authority comes from the will, not the grant of probate, so an executor can commence a suit before extracting the grant of probate. However, an executor cannot be sued until the grant is extracted.

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    PARTIES IN ESTATE CLAIM

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    1. An administrator or executor cannot sue or be sued before obtaining a grant of probate or letters of administration from the court. 2. However, there are some exceptions where an administrator may have the capacity to sue, such as when special circumstances require preserving an estate's assets from being lost or damaged. 3. An executor's authority comes from the will, not the grant of probate, so an executor can commence a suit before extracting the grant of probate. However, an executor cannot be sued until the grant is extracted.

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    © All Rights Reserved
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    103 views1 page

    ESTATE ADMINISTRATOR ACTION BEFORE PROBATE

    Uploaded by

    Khairun Nisaazwani
    1. An administrator or executor cannot sue or be sued before obtaining a grant of probate or letters of administration from the court. 2. However, there are some exceptions where an administrator may have the capacity to sue, such as when special circumstances require preserving an estate's assets from being lost or damaged. 3. An executor's authority comes from the will, not the grant of probate, so an executor can commence a suit before extracting the grant of probate. However, an executor cannot be sued until the grant is extracted.

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    ESTATE OF DECEASED PERSON ADMINISTRATOR CANNOT SUE OR ACTION BEFORE GRANT OF PROBATE

    BE SUED BEFORE LOA EXTRACTED EXTRACTED

    • Section 8(1) CLA


    • Section 8(3) CLA - “action is taken
    • Ingall v Moran • Basically executor can commence a suit
    after 6months after the deceased’s
    Plaintiff issued a writ tapi LoA not taken out without extract grant of probate
    personal rep taken out
    representation”
    • P Govindasamy Pillay v Lok Seng Chai Reason :
    Contoh kalau probate, action boleh
    within 6 months after executor dapat No grant extracted = no representative capacity = no
    locus standi Meyappa Chetty v Subramaniam Chetty: An
    grant of probate. Kalau intestate,
    executor derives his title and authority from
    action can be taken within 6 months
    • Ruhani Mohiat v Abdul Karim the will of his testator and not from any
    after administrator extract letter of
    Held: The plaintiffs had the capacity to sue as the grant of probate.
    administration
    deceased’s administrators as the letters of
    administration, despite not having been extracted, • However, an executor cannot be sued before
    • Airey v Airey
    had already been granted before the filing of the suit. the grant of probate is extracted.
    The act of the defendant in
    extracting the letters of
    • Al Rashidy Kassim & Ors v Rosman Roslan (2007) Mohamidu Mohideen Hadjiar v Pitchey: it
    administration revived the claim,
    Fed Court : if there are special circumstances, the was held that a creditor cannot sue executor
    thus resulting in the plaintiff’s claim
    administrator will have locus to proceed with the legal unless he had obtained grant of probate
    to not be statute-barred where it was
    made within the six months proceeding without extract LoA
    permitted
    Facts : the action instituted by beneficiaries of the
    • Lee Lee Cheng v Seow Peng Kwang estate untuk dapatkan tanah from the respondent
    The proceedings taken after the whom they alleged had fraudulently transferred the
    expiration of the period of 6m land to himself. Other issues/situations
    prescribed. The respondent
    contended that the action was barred Def oso dah masuk dlm tanah tu and damaged the
    • Person who intermeddles with
    where the six-month period had fruit trees & demolished building on the land. And the
    deceased’s assets indirectly becomes an
    expired, while the appellant applied land will be sold to third party. There’s a possibility the
    executor or administrator of deceased’s
    to have the six-month period land may be lost forever
    estate
    enlarged. Held: The court has no
    power to extend the period of time Issue : adakah beneficiaries ni semua, without first
    extract/obtain LoA have a locus standi to commence • Writ issued in the name of deceased
    prescribed and thus, the appellant's plaintiff/defendant - The writ will be set
    alleged cause of action was barred. the action in order to protect and regain the land
    which has been fraudulently obtained by an outsider aside.

    Held : court in the view that appellants (beneficiaries) • Plaintiff dies in the course of
    do have locus standi to commence proceeding in proceedings
    order to protect and preserve the asset of the estate
    • Action against deceased’s estate where
    no grant has been extracted – official
    administrator cannot be sued

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