When a homeowner passes away and leaves their property to multiple executors, a critical question often arises during the sale process: Can just one executor sign the Sale and Purchase Agreement (SPA), or must every named executor put pen to paper?
Under Malaysian law, specifically the Probate and Administration Act 1959 (PAA), the answer depends heavily on whether you are selling a “movable” asset (like a car or shares) or “immovable” property (land and houses).
1. The General Rule for Land (Immovable Property)
If the estate asset is land or a house, the law is strict. According to Section 60(2) of the Probate and Administration Act 1959, no sale, transfer, or conveyance of immovable property can be made without the concurrence of all the personal representatives of the deceased.
Because the term “personal representative” includes both executors and administrators, this means that if a Will names two executors, both must sign the SPA for the sale of land to be valid.
The only exceptions to this “rule of concurrence” are:
- If the Court specifically directs or orders that one executor may sign alone.
- If the Will itself contains an express direction allowing a single executor to exercise such powers independently.
2. The Duty to Act in Unison
The requirement for joint signatures is not just a technicality; it is rooted in the fiduciary nature of the role. Malaysian courts have consistently held that trustees and executors must act in unison.
In the landmark case of Luke v. South Kensington Hotel Co [1879] 11 Ch D 121 (CA), the court established a famous rule: a majority binds neither a dissenting minority nor the trust estate. To legally bind the estate in a significant transaction like a land sale, the act must be the unanimous act of all. This principle was further reinforced in the Malaysian case of Foo Yin Shang & Anor v. Foo Yin Fong & Ors [1959] 1 MLRH 670 (HC), which confirmed that it is a well-settled principle that representatives must act together.
3. What About Movable Assets?
For movable property—such as selling the deceased’s vehicle, furniture, or withdrawing bank funds—the law is more flexible. Section 60(2) notes that for these general administrative tasks, the powers of several personal representatives may be exercised by any one of them, provided the Will does not state otherwise.
Furthermore, Section 6(1) of the PAA stipulates that if probate is granted to only some of the named executors (while others have power reserved to them), the proving executors can exercise all legal powers as effectually as if all named executors had concurred.
4. The Consequences of a “Single Signature” on Land
If only one executor signs an SPA for land without the concurrence of their co-executor or a court order, the transaction is on shaky legal ground. Under Section 60(6) of the PAA, any disposal of property made in contravention of the concurrence rule is voidable at the instance of any other person interested in the property (such as a beneficiary or the other executor).
Case law, such as Tacplas Property Services Pte Ltd v. Lee Peter Michael [2000] 1 SLR(R) 159, emphasizes that the act of one representative cannot bind the estate unless that act is later ratified by all the representatives. Without such ratification or joint signatures, a purchaser may find their contract declared a nullity.
Summary Checklist for Purchasers and Executors
- Identify the Property: Is it land? If yes, look for all signatures.
- Check the Grant of Probate: Ensure all executors listed on the Grant are signing the documents.
- Read the Will: Check for any “sole power” clauses that might override the general rule.
- The Unison Rule: Remember that executors transition into trustees, and trustees must act jointly and unanimously.
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.
