Estate
administrator
20/10/2009 The Star Articles of Law By BHAG SINGH
Who has the right to administer the estate of a deceased?
A PERSON making a will can direct how the inheritance is to be passed on.
He may also name one or more executors and trustees to administer the
estate. However, there is no guarantee that everything will proceed
smoothly or that each beneficiary will receive his or her share.
Who is entitled to what may be clearly provided for in the will. Where
there is no will, both the civil law and syariah law state who is entitled
to the inheritance and in what proportion.
Apart from the few instances where the validity of a will was challenged,
there may be a dispute as to who should administer the estate. Sometimes
the challenge comes when a person seeks to be appointed. In other
instances, it may involve steps to remove a person already appointed.
Then there are situations when an executor and trustees are appointed
under a will. Unless the will itself is disputed, it is unlikely that such
an appointment can be challenged. However, it may transpire that such a
person may die or for some other reason be unable to act.
Unless there is a change of executorship, the position will revert to one
that is similar to where no executor or trustee has been appointed. In
such a situation, different persons may claim to be appointed to
administer the estate or object to the person seeking to be appointed.
Who then should administer the estate? Has anyone an inalienable right?
Section 59 of the Probate and Administration Act 1959 provides that “when
no executor is appointed or having been appointed is incapable or
unwilling to act or dies before having administered the estate, the
Letters of Administration can be granted to any person the court deems fit
to administer the estate”.
Of course, the words “any person” is subject to a measure of qualification
in a considerable way. The law goes on to set out those who would have a
claim to a prior right to a grant. However, it is not an absolute right to
priority as other factors may stand in the way.
First in line would be a universal legatee or residual legatee. Then will
be a personal representative of a deceased universal or residual legatee.
Then follows a beneficiary under a will as would be entitled to a grant of
administration if the deceased had died intestate. This would be followed
by a legatee having a beneficial interest and finally, a creditor of the
deceased.
Section 30 of the Act gives the court wide powers and discretion on the
appointment of a person to whom administration can and may be granted.
Generally, the courts will give priority to one or more of the persons who
are entitled to claim priority. The exception to this will be insolvency
of the estate or other special circumstances.
A spouse, children and a parent are all entitled to inherit the estate in
different proportions. All such persons would have an equal right to apply
for Letters of Administration.
Disagreements
If only one eligible person comes forward to apply to administer and the
others are happy to sit back and allow him to do so, little difficulty
arises. However, sometimes personal differences or mistrust of one another
can result in objection to the application.
How then does the court resolve the situation?
Subject to other considerations based on the law as well as the realities
of life, one important objective which the court always keeps in view is
the expeditious and economical administration of the estate of a deceased
person.
By virtue of the provisions of law, certain persons ought to be preferred
when considering whether to allow a person who is eligible to a grant of
the administration of the estate. However, no broad or general rule exists
as to what are the special circumstances in which the court will pass over
the person who would otherwise be entitled to administration.
In making such a decision, the court will look at the circumstances of the
case. It will take into account factors that will directly affect the
administration of the estate. Each case is decided based on its own merits
and its special circumstances.
Of course, there are the positive and negative aspects of the matter. On
the one hand, there are requirements to be considered. The absence of
these elements may become a ground for removal of an administrator or even
to object to the appointment in the first place.
Considerations
In his book, Probate And Administration In Singapore And Malaysia; Law And
Practice, G. Raman says: “Quite often, the court will be required to
choose between competing applicants though the applicants may come from
the same class.”
In such instances, the court will look into that section or those numbers
of the class who have a larger interest than the competing group.
Therefore the majority interest will normally be recognised and granted
the letters of representation.
Where the applicants are brothers, it is not necessarily the case that the
elder among them will be appointed as was the case In The Estate Of Ngau
Ken Lock (deceased). Under Section 30 of the Act, the court will appoint
the person who is the most fit.
There are certain situations where an applicant may be passed over for
someone else who is more “fit” to be granted the administration. This may
be because of bad character, financial position or ineptitude for
business.
Other factors as stated by G. Raman in his book are an interest
incompatible with the proper administration of the estate, minor interest
in the estate or being personally objectionable to other persons entitled
to share in the estate.
In conclusion, these are the broader factors and considerations. However,
much depends on the facts of each case when it comes to the appointment of
a personal representative. |
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