The case of JIGARLAL KANTILAL DOSHI v. AMANAH RAYA BERHAD [2012] 1 MLRA 40 was an appeal to the Federal Court (Putrajaya, 19 October 2011) concerning the setting aside of a grant of probate. The Federal Court adjudicated two main questions of law:
- Question 1: Whether Amanah Raya Berhad (‘ARB’) could petition for a grant of probate under the Public Trust Corporation Act 1995 (‘Act’) when appointed only as an administrator.
- Question 2: Whether a grant of probate is a nullity when a caveat against a grant was in force.
The appeal was allowed with costs, with Question 1 answered in the negative and Question 2 in the affirmative.
Key Legal Principles and Court Findings
1. Distinction Between Administrator and Executor/Probate and Administration: The Federal Court found that ARB, having been appointed as an administrator, should have applied for a grant of administration, not a grant of probate.
- Difference in Role: The distinction between an executor and an administrator is crucial because an administrator’s powers are limited and subject to the court’s direction and permission, as laid out in s 60 of the Probate and Administration Act 1959, unlike the wide powers of an executor.
- Wrong Application: The Court of Appeal had appointed ARB as an administrator in 1998. The subsequent application by ARB for a Grant of Probate was made pursuant to its powers under s 13(1) of the Public Trust Corporation Act 1995.
- Grant Declared a Nullity: The court agreed with the appellant that the Grant of Probate in this instance was a breach of the Court of Appeal’s order and declared the Grant to be a nullity.
- Court Excerpt: “As such we are in agreement with the submission of the appellant that the Grant of Probate in this instance had been in breach of the Order of the Court of Appeal and would declare that Grant to be a nullity. An act done in disobedience of a court order as happened here, is an invalid act; and it could not affect any change in the rights and liabilities of others…”
2. Legal Effect of a Caveat: The court ruled that a grant of probate made while a valid caveat was in force, and without notice to the caveator, is a nullity.
- Distinction between Appointment and Grant: The Court of Appeal failed to appreciate the distinction between an appointment and a grant. It is the grant that clothes the personal representative with title upon its issue by the registry under the seal of the court, and an administrator cannot act until then.
- Court Excerpt: “The administrator derives his title from the grant and cannot act until then. We agree with what Ismail Khan J said in P Govindasamy Pillay & Sons Ltd v. Lok Seng Chai & Ors [1991] 27 MLJ 91 that ‘it is only on extracting the grant of letters of administration that the petitioner can be said to be duly clothed with the representative character and to have acquired a title to the estate’.”
- Function of a Caveat: The legal effect of a caveat is a general notice to the court not to allow proceedings to be taken without notice to the caveator, and not merely as a notice to the caveator.
- Court Excerpt (from Tristram and Coote’s, Probate Practice): A caveat is “a notice in writing lodged in the principal probate registry, or in a district probate registry, that no grant is to be sealed in the estate of the deceased named therein without notice to the party who has entered the caveat”.
- Mandatory Prohibition on Grant: The prohibition on making a grant with knowledge of an effective caveat is mandatory, as emphasized by O 71 r 37(7) of the Rules of High Court 1980.
- Grant in Defiance of a Caveat is a Nullity: A grant made in defiance of a caveat is a nullity, and this nullity is not affected even by a mistake of the court registry.
- Court Excerpt: “From the above principles and statements we would therefore hold that a grant made in defiance of a caveat would be a nullity. And in answer to the respondents’ argument, we say that this nullity will not be affected even by a mistake of the court registry.”
- Conclusion: The Grant of Probate should have been set aside and the matter corrected pursuant to the procedures set out under O 71 r 37 Rules of High Court 1980, as a caveat was in existence.
Disclaimer: This post is for informational purposes only and does not constitute legal advice. Please consult a qualified Advocate & Solicitor for your specific legal needs.
