Halsbury's Laws of Malaysia - Wills, Probate2018-12-04 04-57 PDF

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Halsbury's Laws of Malaysia - Wills, Probate, Administration and Succession/330 - Wills, Probate,
Administration and Succession/330 - Wills, Probate, Administration and Succession/Latest Updates/2015/
Updated Cases
Halsburys Laws of Malaysia
330 -
Wills, Probate, Administration and Succession

Latest Updates
2015
Updated Cases
1 Chenna Gounder a/l Kandasamy v Angamah a/p Sunappan [2017] 10 MLJ 387
[330.001], [330.028], [330.300], [330.367], [330.369]
2 Md Zubir bin Hamid (as beneficiaries of the estate of Hj Saud bin Hj Deris and Muhammad
Salleh bin Hj Deris, deceased) v Zahari bin Salleh [2017] 4 MLJ 351 , CA [330.277],
[330.540]
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Administration and Succession/(1) Wills/(1) Testamentary Disposition/ A. Introduction/ (i) Nature and
Characteristics of Wills
Halsburys Laws of Malaysia
330 -
WILLS, PROBATE, ADMINISTRATION AND SUCCESSION

(1)
WILLS
(1) TESTAMENTARY DISPOSITION
A. INTRODUCTION
(i) Nature and Characteristics of Wills
[330.001]
Meaning of 'will' and 'codicil'
A will is the declaration in a prescribed manner1 of the intention of the person making it with respect to
his property2 or other matters which he desires to be carried into effect after his death and includes a
testament3, a codicil4 and an appointment by will or by writing in the nature of a will in exercise of a
power and also a disposition by will or testament of the guardianship, custody and tuition of any child5. In
this title, only the law in West Malaysia applying to the wills of persons not professing the religion of
Islam is stated6.
1 As to formalities see [330.028] and following. For the various forms of will see 23 The Encyclopaedia of Forms and
Precedents (4th Edn) pp 567-597 Forms 1:A:1-1:E:5.
2 For these purposes 'property' includes lands, leases, rents and hereditaments corporeal, incorporeal or personal and any
individual shares thereof and any estate, right or interest therein or in relation thereto, moneys, shares of Government and
other funds, securities for money, charges, debts, choses in action, rights, credits, goods and all other property whatsoever
which devolves upon the executor or administrator and any share or interest therein and any contingent, executory or
other future interest: Wills Act 1959 (Act 346) s 2(1). See note 6 below. The Probate and Administration Act 1959 (Act 97)
s 2 defines 'property' as including a thing in action and any interest in movable or immovable property. The right to sue,
being a chose in action, is property within that definition: see Ng Sook Hooi v Ng Kim Seng [2001] MLJU 368.
3 The expressions 'will' and 'testament' appear to be synonyms and are used interchangeably in our law.
4 A codicil is of similar nature to a will as regards both its purposes and the formalities relating to it, but in general it is
supplemental to and considered as annexed to a will previously made, being executed for the purpose of adding to,
varying or revoking the provisions of that will.
5 See the Wills Act 1959 s 2(1). See also Chenna Gounder a/l Kandasamy v Angamah a/p Sunappan [2017] 10 MLJ 387.
Under the Guardianship of Infants Act 1961 (Act 351) s 7, a parent of an infant has the statutory power to appoint any
person to be guardian of the infant after that parent's death; and see FAMILY LAW (2013 Reissue) [390.083].
6 The Wills Ordinance 1959 (FM Ord No 38 of 1959) came into force on 1 April 1960 (see Government Gazette LN
55/1960). This Ordinance applied only to wills where the testator died on or after 1 April 1960, the date on which the
Ordinance came into force, irrespective of whether the will was made before, or on or after that date. The Ordinance has
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since been superseded and the revised edition of the Wills Act 1959 came into force on 6 October 1988 and applies to the
States of West Malaysia only: see the Wills Act 1959 ss 1(2), 2(2).
[330.002]
Essential characteristics
A will is normally made for the purpose of making dispositions of property to take effect on or after the
testator's1 death, but it may also be made for the purpose of appointing executors2 or other persons
whom the testator wishes to manage or assist in managing any part of his estate, for appointing
guardians of his infant children after his death, for exercising any power exercisable by him by will, for
revoking or altering any previous will of his3, taking effect on or after his death. Every will, however, has
this essential characteristic, that during the life of the testator it is a mere declaration of his intention and
may be freely revoked or altered in a prescribed manner4. Until his death, the will is ambulatory, or
without a fixed effect, and capable of operating on property which becomes the testator's only after the
will is made5. On his death, it crystallises and takes effect as an appointment, disposition or otherwise,
according to its tenor6.
A will must be distinguished from a disposition made inter vivos, such as a gift mortis causa 7 which is
made in contemplation of the death of the donor in circumstances which show that it is to take effect only
in that event, or a voluntary settlement with a power of revocation8, or a nomination of a beneficiary
under a trust deed or life policy operating by reason of the force of that deed or policy, or a nomination of
beneficiary under rules of the employees provident fund (EPF) operating by reason of the force of the
Employees Provident Fund Regulations 20019. A fortiori, an instrument which is not revocable and which
comes into operation in the settlor's lifetime is not testamentary10.
An attempted testamentary disposition cannot be enforced as a declaration of trust11. The revocable

nature of a will cannot be lost, even by a declaration that it is irrevocable12, or by a covenant or contract
not to revoke it13. After revocation the will may, however, be revived.
1 'Testator' is used in this title whatever may be the contents of the will, and whether the will disposes of property or not.
The terms 'testate', 'intestate', 'testacy' and 'intestacy' in their ordinary sense are associated with the question how far the
testator's property is disposed of by the will, whether completely, incompletely or not at all.
2 As to the appointment of executors see [330.022].
3 As to alterations see [330.036]; and as to revocation see [330.037] and following.
4 However, no transfer, conveyance, assignment or other act made or done subsequently to the execution of a will or
codicil of or relating to any property therein comprised, except an act by which such will or codicil must be revoked as
aforesaid, must prevent the operation of the will or codicil with respect to such estate, right, share or interest in such
property as the testator must have power to dispose of by will at the time of his death: see the Wills Act 1959 (Act 346) s
17.
5 Baugh v Read (1790) 1 Ves 257 at 260; Lord Walpole v Earl of Cholmondeley (1797) 7 Term Rep 138 at 149;
Beddington v Baumann [1903] AC 13 at 19, HL ; Re Baroness Llanover, Herbert v Freshfield (No 2) [1903] 2 Ch 330 at
335; Re Thompson, Thompson v Thompson [1906] 2 Ch 199 at 205; Re Berger [1990] Ch 118 at 129, [1989] 1 All ER 591
at 599, CA (Eng) . Although a will is ambulatory and revocable, it must, when executed, be intended to have immediate
effect and cannot be executed conditionally on a future event happening.
6 Every will must be construed, with reference to the property comprised in it, to speak and take effect as if it had been
executed immediately before the death of the testator, unless a contrary intention appears by the will: see the Wills Act
1959 s 18. See also Forse and Hembling's Case (1588) 4 Co Rep 60b; Re Rye's Settlement (1852) 10 Hare 106 at 112;
Cooper v Martin (1867) 3 Ch App 47; Re Robinson (1867) LR 1 P & D 384 at 387; Olivant v Wright (1878) 9 Ch D 646 at
650; Beddington v Baumann [1903] AC 13 at 19, HL; 2 Bl Com (14th Edn) 502; Shep Touch (8th Edn) 401. See also Lord
Bindon v Earl of Suffolk (1707) 1 P Wms 96 at 97 per Lord Cowper LC ; Bunbury v Doran (1875) IR 9 CL 284 at 286, Ex
Ch .
7 Where a question arises as to whether a specific property forms part of the assets of an estate of a deceased person
who is a Muslim in a petition for a letter of administration in the civil High Court see Latifah bte Mat Zin v Rosmawati bte
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Sharibun [2007] 5 MLJ 101, FC . Whether there was a gift inter vivos or not, that question will be determined in
accordance with the Islamic Law of gift inter vivos or 'hibah'. The civil court must give effect to it in the grant of a letter of
administration, and subsequently, in distributing the estate.
8 Tompson v Browne (1835) 3 My & K 32; Patch v Shore (1862) 2 Drew & Sm 589. See also Alexander v Brame (1855) 7
De GM & G 525 at 530; on appeal sub nom Jeffries v Alexander (1860) 8 HL Cas 594.
9 Ie the Employees Provident Fund Regulations 2001 (PU (A) 409/2001) reg 6. See How Yew Hock (Executor of the
estate of Yee Sow Thoo (decd) v Lembaga Wang Simpanan Pekerja [1996] 2 MLJ 474, FC .
10 Thorncroft and Clarke v Lashmar (1862) 2 Sw & Tr 479; Re Robinson (1867) LR 1 P & D 384; Re Halpin (1873) IR 8 Eq
567.
11 Cross v Cross (1877) 1 LR Ir 389; Towers v Hogan (1889) 23 LR Ir 53. As to declaration of trust see TRUSTS (2015
Reissue) [310.044]-[310.048].
12 Vynior's Case (1609) 8 Co Rep 81b at 82a; Re McDonald (1911) 30 NZLR 896.
13 Re Heys, Walker v Gaskill [1914] P 192.
[330.003]
Delegation of will-making power
Although a testator may properly make a will or codicil conditional upon the assent of a third person to its
taking effect as a testamentary document1, he may not delegate his will-making power to any other
person2. There is, however, no objection to the testator by his will conferring on his executors either a
special3 or a general4 power, or indeed a certain power of any other description5, to select his
beneficiaries, provided that the terms of the trust are conceptually certain, the objects of the power could
be ascertained and there is no uncertainty with reference to the objects6. The court looks at the will as at
the date of death and decides at once whether the gift is definite or indefinite, and if it is indefinite the gift
is inoperative7.
1 Re Smith (1869) LR 1 P & D 717, where there was an option to the wife to add a codicil to the will or not.
2 Grimond v Grimond [1905] AC 124 at 126, HL, per Earl of Halsbury LC ; Houston v Burns [1918] AC 337 at 342, HL, per
Viscount Haldane ; A-G v National Provincial and Union Bank of England [1924] AC 262 at 268, HL, per Viscount Haldane
; Chichester Diocesan Fund and Board of Finance Inc v Simpson [1944] AC 341 at 348-349, 364, 371.
3 Brown v Higgs (1801) 8 Ves 561 (affd (1813) 18 Ves 192, HL ); Re Hughes, Hughes v Footner [1921] 2 Ch 208; Re
Abrahams' Will Trusts, Caplan v Abrahams [1969] 1 Ch 463, [1967] 2 All ER 1175.
4 Gibbs v Rumsey (1813) 2 Ves & B 294; Re Hughes, Hughes v Footner [1921] 2 Ch 208 at 212 per Sargant J .
5 Re Park, Public Trustee v Armstrong [1932] 1 Ch 580; Re Jones, Public Trustee v Jones [1945] Ch 105. See also Re
Manisty's Settlement, Manisty v Manisty [1974] Ch 17, [1973] 2 All ER 1203; Re Hay's Settlement Trusts [1981] 3 All ER
786, [1982] 1 WLR 202.
6 Re Chionh Ke Hu (decd) [1964] MLJ 270, where it was held that a provision that '30 shares of the estate should be
distributed among such persons professing or practising the Buddhist religion and in such proportions as my executors in
their absolute discretion think fit' were insufficient to constitute advancement of religion, and as there was no public benefit,
no valid charitable trust was created and as all objects of the power could not be ascertained, there was uncertainty with
reference to the objects, and consequently as no valid private trust was created, there was an intestacy in respect of the
30 shares.
7 Re Jarman's Estate, Leavers v Clayton (1878) 8 Ch D 584 at 587 per Hall VC .
[330.004]
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Execution of wills outside or within Malaysia; formal validity
A will1 executed outside Malaysia will be regarded as properly executed for the purpose of being
admitted to probate in West Malaysia2, if the execution of the will conforms with:
(1) the provisions of the Wills Act 19593; or

(2) the law of the place where it was executed; or
(3) the law of the testator's domicile at the time of execution; or
(4) the law of the testator's domicile at the time of his death4,
provided that such will is in writing or is a privileged will made under the Wills Act 19595. The Registrar
may require proof by affidavit of an expert of the law of the country in question that the will is a valid
testament by the law of that country6.
A will executed within West Malaysia by a citizen7 will be deemed to be properly executed for the
purpose of being admitted to probate in West Malaysia if it is executed in the manner required by the
Wills Act 1959.
A will valid when executed will not be held to be revoked or to have become invalid nor will the
construction thereof be altered by reason only of a subsequent change of domicile of the testator8.
1 For the meaning of 'will' see [330.001].
2 For these purposes, 'West Malaysia' has the meaning assigned thereto in the Interpretation Acts 1948 and 1967 (Act
388) s 3 and includes the Federal Territory of Kuala Lumpur: Wills Act 1959 (Act 346) s 2(1).All references to 'West
Malaysia' in any written law are to be construed as references to 'Peninsular Malaysia': Interpretation (Amendment) Act
1997 (Act A996) s 5(2). For the meaning of 'Peninsular Malaysia', see the Interpretation Acts 1948 and 1967 s 3 (inserted
by the Interpretation (Amendment) Act 1997 s 5(1)(a)).
3 Ie made after the date of the coming into operation of the Wills Act 1959. As to when the Act came into force see
[330.001] note 6.
4 See the Wills Act 1959 s 27.
5 Ie under the Wills Act 1959 s 26: see [330.035].
6 Re Syed Hussain bin Omar bin Shahab (decd) [1939] MLJ 69. See also RC O 71 r 16.
7 See the Wills Act 1959 s 28, which applies whatever the domicile may be at the time of making the will or at the time of
his death. This applies as regards movable property and immovable property situate in Malaysia. There is no provision in
the Act for the case where a will is executed in Malaysia by a non-citizen. The formal validity of such will falls to be decided
by the common law conflict rules, namely it will depend on the lex domicilii.

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Administration and Succession/(1) Wills/(1) Testamentary Disposition/ A. Introduction/ (ii) Devolution of
Property under Testamentary Disposition
(ii) Devolution of Property under Testamentary Disposition
[330.005]
Paramount title of the personal representatives
Malaysian law has adopted generally, in relation to devolution of property of the deceased person, the
distinction between legal and equitable title. At law, the sole legal title to the deceased's property, both
movable and immovable1, vests, notwithstanding his testamentary dispositions, in his personal
representatives2 on the making of an order for a grant of probate or administration by the court3. For the
purpose of administration of the estate of the deceased, the movable and immovable property is held by
his personal representatives as legal owner. The dispositions contained in the will take effect in equity
only, that is to say that the devisees or legatees only have rights, enforceable in the courts, against the
personal representatives for the due and proper administration and distribution of the estate4. Immovable
property in respect of which a separate document of title has been issued, requires a transmission to
vest the legal title in the personal representatives as 'Representative'5. Immovable property devised
absolutely by the will requires a transfer or conveyance by the personal representatives to vest the legal
title in the devisee6.
1 See [330.013].
2 See [330.241] and following.
3 See generally [330.326] and following, and [330.399] and following.
5 See the National Land Code (Act 56 of 1965) ss 346, 347.
6 See the National Land Code s 346(5).
[330.006]
Effect of will on property
As a disposition of his property, a will1 is subject to any subsequent disposition inter vivos by the testator
in his lifetime, and to any order made by the court for the maintenance of a dependant under the
Inheritance (Family Provision) Act 1971. The dispositions in the will take effect subject to the rules as to
payment of debts and liabilities and the presumptions as to the order of payment of legacies and the
construction of expressions giving legacies priority, or affecting the order of application of assets in the
payment of debts or legacies, or charging annuities on capital or income2. However, where the estate of
a deceased person is solvent, the usual rules may be displaced if the testator shows such an intention3.
1 For these purposes 'will' includes codicil: Inheritance (Family Provision) Act 1971 (Act 39) s 2.
2 For the general rules, duties and presumptions on the administration of estates, see the Probate and Administration Act
1959 (Act 97) ss 67-77; and [330.498] and following. See also the Civil Law Act 1956 (Act 67) ss 21, 22.
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3 See Re Scholfield's Will's Trusts, Scholfield v Scholfield [1949] Ch 341, [1949] 1 All ER 490.
[330.007]
Conditions of an effectual gift by will
The following are necessary conditions so that a gift under a will may be effectual to confer a title on the
donee to the property given1:
(1) the testator must be dead2;

(2) the testator must have been a person who at the date of the will had the legal capacity to
make a will3;
(3) at the time of making the will the testator must have had the intention to make it, so as to
take effect on his death, the gift being defeated if the testator's mind was not free and
unaffected by fear, fraud or undue influence4, or want of knowledge and approval5, or by
any other matters which by law vitiate his intention;
(4) the will must be made in the form and manner required by law6;
(5) the gift must not have been revoked7 or altered8, or nullified by divorce9, or, if revoked,
must have been revived before the death of the testator10;
(6) probate of the will or letters of administration with the will annexed must be obtained11;
(7) the words used by the testator in making the gift must be sufficient to make his intention
capable of being ascertained12;
(8) the subject matter of the gift described by the testator must be ascertainable and capable
of being disposed of by the will of the testator13, or, if not, the gift must be validated under
the equitable doctrine of election, or otherwise;
(9) the donee described by the testator must be ascertainable and capable by law of taking the
benefit of the gift14;
(10) the gift so intended must be consistent with law, or must be capable of being effectuated
in a manner consistent with the law15;
(11) the gift must be assented to or given effect to by the personal representatives of the
testator16;
(12) all other conditions precedent imposed by the testator or by law must be performed17.
1 As to the failure of gifts see [330.047], [330.060] and following.
2 Thorp v Tomson (1588) 2 Leon 120. See also [330.002].
3 See [330.009].
4 As to gifts obtained by undue influence see [330.012].
5 As to want of knowledge and approval see [330.011].
6 As to the form of wills made abroad see [330.004].
7 As to revocation see [330.037]-[330.042].
8 As to alterations and erasures see [330.036].
9 As to divorce see generally FAMILY LAW (2013 Reissue) [390.258] and following.
11 As to probate see [330.326] and following.
12 As to construction generally see [330.070] and following.
13 As to property capable of being disposed of see [330.013] and following.

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14 As to the capacity to benefit under a will see [330.017] and following.
15 As to interests that may be created see [330.048]-[330.052].
16 As to the effect of a will in passing the property to the personal representatives see [330.005]; and as to executory
trusts see TRUSTS (2015 Reissue) [310.068]-[310.070].
17 As to vesting of conditional interests see [330.222] and following.

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Administration and Succession/(1) Wills/(1) Testamentary Disposition/ A. Introduction/ (iii) Restriction on
Freedom of Testamentary Disposition
(iii) Restriction on Freedom of Testamentary Disposition
[330.008]
Restriction by statute
Where the court is of the opinion that the disposition of the deceased's estate effected by his will1 is not
such as to make reasonable provision for the maintenance of a surviving spouse; a daughter2 who has
not been married or who is, by reason of some mental or physical disability, incapable of maintaining
herself; an infant son3; or a son who is, by reason of some mental or physical disability, incapable of
maintaining himself, who applies to the court under the Inheritance (Family Provision) Act 19714, the
court may order reasonable provision for the maintenance of the applicant to be made out of the
testator's net estate5.
1 For the meaning of 'will' under the Inheritance (Family Provision) Act 1971 (Act 39) see [330.006] note 1.
2 For these purposes, 'son' and 'daughter' respectively, include a male or female child adopted by the deceased under the
provisions of any written law relating to adoption of children for the time being in force and also the son or daughter of the
deceased en ventre sa m re at the date of death of the deceased: Inheritance (Family Provision) Act 1971 s 2.
3 'Infant son' means a male child who is below the age of 21: see the Inheritance (Family Provision) Act 1971 s 3(2)(c).
4 See the Inheritance (Family Provision) Act 1971 s 3; and see [330.617]-[330.626].
5 For these purposes, 'net estate' means all the property of which the deceased person had power to dispose by his will
(otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and
administration expenses, debts and liabilities and estate duties payable out of his estate on his death: Inheritance (Family
Provision) Act 1971 s 2.
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Administration and Succession/(1) Wills/(1) Testamentary Disposition/ B. Testamentary Capacity/ (i) In
General
B. TESTAMENTARY CAPACITY
(i) In General
[330.009]
Persons of full age and sound mind
A person of sound mind1 and of the age of majority2 may make a valid will3.
1 See further [330.010].
2 The minority of all males and females will cease and determine within Malaysia at the age of 18 years and every such
male and female attaining that age will be of the age of majority: see the Age of Majority Act 1971 (Act 21) s 2.
3 See the Wills Act 1959 (Act 346) ss 3 and 4. For the meaning of 'will' see [330.001].
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Administration and Succession/(1) Wills/(1) Testamentary Disposition/ B. Testamentary Capacity/ (ii) Mental
Disability
(ii) Mental Disability
[330.010]
Soundness of mind, memory and understanding
It is necessary for the validity of a will that the testator should be of sound mind1, memory and
understanding, and must be expressed in words which have consistently been held to mean sound
disposing mind and to import sufficient capacity2 to deal with and appreciate the various dispositions of
property to which the testator is about to affix his signature3.
1 See [330.009]. See also Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng [2001] 2 MLJ 70, where, in the absence of a
doctor's testimony as to the deceased's state of mind, the court, having considered the facts of the matter, found that the
deceased was of unsound mind at the time of making the will and therefore held that the will was invalid.
2 The question of capacity is almost always one of degree and does not depend solely on scientific or legal definition: see
Boyse v Rossborough (1857) 6 HL Cas 2 at 45; Boughton v Knight (1873) LR 3 P & D 64 at 67; Burdett v Thompson
(1873) LR 3 P & D 72n. See also Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457, where the court held that
senility cannot be automatically equated with testamentary incapacity; Krishnavani a/p Muniandy v Sethambal d/o
Doraiappah [1998] 7 MLJ 366.In order to test the testamentary capacity of the deceased it is necessary for the party
propounding the will to establish that at the time of executing the will, the deceased was of 'sound mind, memory and
understanding' and to remove, by way of explanations, any suspicious circumstances lurking behind the execution of a will:
Tho Yow Pew v Chua Kooi Hean [2001] 5 MLJ 578; and see Choo Mooi Kooi @ Choo Soo Yin v Choo Choon Jin @
Jimmy Choo [2012] 2 MLJ 691, where it was noted that burden of proving testamentary capacity and due execution was
on the defendant, the executor and sole beneficiary. It was held the burden had not been discharged in light of the
suspicious circumstances surrounding execution of the will, the substantial medical evidence that the deceased was very ill
at the time of execution which would have affected his mental capacity and the fact that the defendant only relied on
evidence from the lawyer who prepared the will and witnessed its execution who was evasive and not credible when
questioned. Only a very slight testamentary capacity is required for the making of a will. The only wills which would be held
invalid would be where the testators were utterly insane: Tho Yow Pew v Chua Kooi Hean [2002] 4 MLJ 97, CA . See also
Thiang Kai Goh v Yee Bee Eng [2005] 1 MLJ 431; and Khaw Cheng Poon v Khaw Cheng Bok [2005] 6 MLJ 540, CA ,
where, although the deceased had experienced psychiatric problems at the time of making the wills in question, all formal
requirements had been attended to in making the wills, he had taken steps to ascertain that he was mentally fit to make a
will, and had sought independent counsel from a senior practitioner who ascertained that the wills had been read and
understood. In Gan Yook Chin (P) v Lee Ing Chin @ Lee Teck Seng [2005] 2 MLJ 1, FC , the court found that the
deceased, although a very sick man, understood the nature and extent of the properties he was disposing under the will
and that he was able to comprehend and appreciate the claims of the beneficiaries he had in mind; and see also Sarah bt
Abdullah @ Hew Lee Ling (p) v Kwok Peck Wah (p) [2009] 6 MLJ 385, CA , where on appeal the Court of Appeal
overturned the trial judge's finding that the deceased did not have testamentary capacity. The court held that while there
was no dispute that the deceased was unwell, the unchallenged evidence of the deceased's doctor showed that the
medication given to the deceased did not affect his mental capacity to make a will. Further, there was no justification to
find that the petitioner's conduct constituted suspicious circumstances. In Karn Woon Lin v Cheah Chor Bok [2013] 3 MLJ
457, CA , in upholding the High Court's decision that the will was valid, the Court of Appeal noted that there was no
evidence of mental disorder or delusion. In addition, the evidence of 'suspicious circumstances' relied on by the plaintiffs,
particularly that the deceased had a feeble mind and lacked understanding because of her disease were not relevant.
However, in Selvarajoo a/l Palaniappa Pillai v Paramasivam a/l Palaniappa Pillai [2013] 5 MLJ 748, the court found that
although the defendant argued that the deceased had only suffered a minor stroke and was in full control of his mental
faculties when he executed the will, the medical evidence suggested that the deceased had made little recovery and was
very weak and incoherent. In the circumstances, it was difficult to comprehend how the deceased could have visited the
lawyer's office to prepare the said will and the attesting witnesses to the will were also not called to testify. It was held that
the plaintiff had succeeded in raising several suspicious circumstances that cast doubt on the testamentary capacity of the
deceased when he executed the will.
3 Shep Touch (8th Edn) 403; Marquess of Winchester's Case (1598) 6 Co Rep 23a; Hastilow v Stobie (1865) LR 1 P & D
64 at 68. See also Re Ng Toh Piew (decd), Tan Geok Eng v Lok Ah Ng [1950] MLJ 273; Khaw Cheng Poon v Khaw
Cheng Bok [2005] 6 MLJ 540, CA (cited in note 2 above). See Eu Boon Yeap v Ewe Kean Hoe [2008] 2 MLJ 868, CA ,
where the will was challenged on the grounds that the testator was of unsound mind and also that the signature was
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forged. The court held the burden of proof is on the challenger to establish testamentary incapacity as an extraneous
vitiating factor. See also Sarah bt Abdullah @ Hew Lee Ling (p) v Kwok Peck Wah (p) [2009] 6 MLJ 385, CA .
[330.011]
Want of knowledge or approval
Although knowledge of the contents of a will and approval of it by the testator are essential to the validity
of the will, this is normally assumed in the case of a competent testator from the fact that he has duly
executed it1. However, whenever the circumstances under which the will has been prepared raise a
well-grounded suspicion that it does not express the testator's mind, the court ought not to pronounce in
favour of it unless that suspicion is removed2. The onus of proof lies upon the persons propounding the
will3.
1 Barry v Butlin (1838) 2 Moo PCC 480.
2 Tyrrell v Painton [1894] P 151 at 159, CA (Eng), per Davey LJ . See also Katchi Fatimah v Mohamed Ibrahim [1962] MLJ
374; Udham Singh v Indar Kaur [1971] 2 MLJ 263, FC ; Krishnavani a/p Muniandy v Sethambal d/o Doraiappah [1998] 7
MLJ 366; Tho Yow Pew v Chua Kooi Hean [2001] 5 MLJ 578.
3 Lim Gaik Teen Neoh v Lim Gaik Kee (1921) 2 BLSS 388; Re Eusoff Mohamed Salleh Angullia (decd) [1939] MLJ 100;
Morris v Norie Lim [1928-41] SCR 24; Amanullah bin Haji Ali Hasan v Hajjah Jamilah binti Sheik Madar [1975] 1 MLJ 30;
Tho Yow Pew v Chua Kooi Hean [2001] 5 MLJ 578. See eg In the Matter of the estate of Chen Ngow @ Chen Seong
Chin, deceased [2011] 6 MLJ 737; Tok Siew Ling v Low Chee Choy [2014] 9 MLJ 787.
[330.012]
Undue influence
In addition to cases of fraud or forgery1, which both vitiate an impugned clause or entire will according to
the circumstances, a will or part of a will may be set aside as having been obtained by undue influence2.
1 Estate of Loh Ah Tong, Low Siew Lan v Tan Ah Eng [1949] Supp MLJ 33; Dr Shanmuganathan v Periasamy s/o
Sithambaram Pillai [1997] 3 MLJ 61, FC (where the party whose interest in the estate was prejudiced by the alleged will
disputed the authenticity of the will alleging fraud and forgery, thereby compelling the executor to propound the will in a
solemn form; the court also noted that fraud in a civil case must be proven beyond a reasonable doubt); Tho Yow Pew v
Chua Kooi Hean [2001] 5 MLJ 578. It may also be pleaded in a probate action that the execution of the alleged will was
obtained by fraud or forgery or undue influence: see RC O 72 r 13(3).
2 Once the party proving the will has shown that the testatrix knew and approved of the contents of the will, the burden
was on the party alleging undue influence to prove the same. The mere proof of the existence of the relation of parent and
child, husband and wife, doctor and patient, solicitor and client, confessor and penitent, guardian and ward or tutor and
pupil does not raise a presumption of undue influence to vitiate a gift by will; but a fiduciary relationship may affect the
burden of proof on the issue of knowledge and approval: Subramaniam v Rajaratnam [1957] MLJ 11, CA . Undue
influence was not proven in Manuel Frank Simon v Jean Sharin a/p DI Williams (Elizabeth Shirley Williams, intervener)
[2008] 7 MLJ 290. See generally [120] CONTRACT (2013 Reissue).
Page 13
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ C. Property Capable of Disposition/ (i)
Property Disposable by Will
C. PROPERTY CAPABLE OF DISPOSITION
(i) Property Disposable by Will
[330.013]
Immovables and movables
The extent to which a person may dispose by will of property belonging to him at the time of his death
depends, in the case of immovables, on the law of the country where the immovable property is situate
(the lex situs) so that a will disposing of land in West Malaysia must be made in accordance with the
Wills Act 19591. In the case of movables, the proper law regulating the disposition by will is the law of the
domicile of the testator at his death (the lex domicilii). A statutory qualification to the rule is introduced by
the Wills Act 1959, as regards movable property and immovable property in Malaysia2. In this title it is
assumed in both cases that there is no foreign element to consider, and the law of West Malaysia only is
stated.
1 See the Wills Act 1959 (Act 346) s 27 (see [330.004] text to notes 1-5). As to privileged wills see [330.035].
2 See the Wills Act 1959 s 28, under which wills made within Malaysia by a citizen, (whatever may be the domicile of such
person at the time of making the same or at the time of his death), will, as regards movable property and immovable
property situate in Malaysia, be deemed to be a will executed for the purpose of being admitted to probate in Malaysia if it
is executed in the manner required by the Act.
[330.014]
Property passing under a will
A testator of full capacity may dispose by will1 all property2 that he owns or to which he is entitled, either
at law or in equity, at the time of his death notwithstanding that he may have become entitled to the
same subsequently to the execution of the will3.
1 For the meaning of 'will' see [330.001]. As to the things that are not disposable by will see [330.015], [330.016].
2 For the meaning of 'property' see [330.001] note 2.
3 Wills Act 1959 (Act 346) s 3.

Page 14
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ C. Property Capable of Disposition/ (ii)
Things Not Disposable by Will
(ii) Things Not Disposable by Will
[330.015]
Property not belonging to the testator
Apart from the execution by will of a power1, a testator cannot effectually dispose by will of property
which he does not own, or which he holds in a representative or official capacity2 or property bound by
the covenant of the testator to devolve in some other manner.
1 Property over which the testator has a power of appointment may be disposed by will of the testator and such devise or
bequest will operate as an execution of such power. This is consistent with the Wills Act 1959 (Act 346) s 20.
2 See [330.241] and following. 'No man can devise anything but what he has to his own use': Bransby v Grantham (1577)
2 Plowd 525 at 526; Lord Hastings v Douglas (1634) Cro Car 343 at 345.
[330.016]
Choses in action which are not disposable
A policy of assurance effected by the testator on his own life and expressed to be for the benefit of a
spouse and/or children or any of them, will create a trust in favour of the objects therein named, and the
moneys payable under it will not, so long as any object of the trust remains unperformed, form part of the
estate of the insured nor be subject to the right of disposition by the assured's will1. Such a limitation of a
testator's power of disposition by will is valid not only against persons claiming under the will2 but also
against creditors3.
The powers of nomination conferred by the rules of the employees provident fund (EPF) may give the
member no right of property in the monies once such powers are properly exercised in accordance with
the rules4.
Similarly, although shares held by the testator in a company incorporated under the Companies Act
19655 vest on his death in his personal representatives, he may have no right, or only a restricted right,
to dispose of them, for other shareholders may have the right to buy them from the personal
representatives6.
1 See the Civil Law Act 1956 (Act 67) s 23(1); and INSURANCE (2011 Reissue) [490.277]-[490.287]. This statutory trust has
been recognised by the Insurance Act 1996 (Act 553) (see [490.274]) and also a statutory trust can now be made under s
166 of that Act (see [490.274]). The fact that the policy is vested in the trustee for the benefit of the beneficiary does not
mean that upon the death of the insured the money is automatically held on trust by the appellant for the benefit of the
beneficiary as bare trustee: see Malaysian Assurance Alliance Bhd v Anthony Kulanthai Marie Joseph (suing as a
representative of the estate of Martin Raj a/l Anthony Selvaraj, decd) [2010] 4 MLJ 749, FC .
2 Re Davies, Davies v Davies [1892] 3 Ch 63 at 69 per North J . See also Page v Cox (1852) 10 Hare 163; Ashby v Costin
(1888) 21 QBD 401; Phillips v Cayley (1889) 43 Ch D 222, CA (Eng) . The nomination in such a case is not revocable by
will: Bennett v Slater [1899] 1 QB 45, CA (Eng) .
3 See the Civil Law Act 1956 s 23(1); Re Flavell, Murray v Flavell (1883) 25 Ch D 89, CA (Eng) .
Page 15
4 Such power of nomination is not considered to be testamentary. See How Yew Hock (Executor of the estate of Yee Sow
Thoo (decd) v Lembaga Wang Simpanan Pekerja [1996] 2 MLJ 474, FC .
5 Ie the Companies Act 1965 (Act 125). As to the incorporation of companies under this Act see COMPANIES (2011
Reissue) [150.039].
6 As to restrictions on transfer of shares in a private company see the Companies Act 1965 s 15 and COMPANIES (2011
Reissue) [150.043].
Page 16
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ D. Donees/ (i) Capacity to Benefit
D. DONEES
(i) Capacity to Benefit
[330.017]
Capacity to benefit in general
As a general rule, any person who may be a grantee under a gift inter vivos may be a donee under a will.
A testator must dispose of his property among natural persons or bodies1 who, whether or not in
existence at the date of the will or of the death, are ascertainable within the period allowed by the rules
against remoteness; the principle is that, apart from charitable gifts, there must be a donee capable of
enforcing the gift or trust in the will. Gifts for non-charitable purposes that are not for the benefit of
ascertainable beneficiaries are invalid2.
In general, a gift by will cannot be made to a person who is dead at the date of the will. Even if the donee
was alive at the date of the will, the gift generally fails if he is dead in the lifetime of the testator3, and his
personal representatives take no interest under the gift. Furthermore, by the Wills Act 1959, where
property given for any estate or interest not determinable at or before the death of the donee, and such
donee, being a child or other issue of the testator, predeceases the testator leaving issue and any such
issue is living at the death of testator, then the gift passes as if the death of the donee had happened
immediately after the death of the testator, unless a contrary intention appears by the will4. The burden
of proving that the donee was alive at the death of the testator so as to be capable of taking benefit
under the will is on those deriving title under the donee5.
1 'Bodies' includes corporate bodies, organisations and other bodies expressly empowered to own property under the
provisions of any written law.
2 Re Chionh Ke Hu (decd) [1964] MLJ 270.
3 See the Wills Act 1959 (Act 346) s 19; [330.047]. See also Chia Khwee Eng v Chia Poh Choon [1923] AC 424, PC (this
presumed intention, namely that the gift was limited by the lifetime of the donee, was excluded by a clause in the will
providing a gift over on remarriage).
4 See the Wills Act 1959 s 25; and [330.065].
5 In cases where two or more persons die in circumstances rending it uncertain which of them survived the other, there is
a statutory presumption that such deaths occurred in order of seniority and accordingly the younger is deemed to have
survived the elder: Presumption of Survivorship Act 1950 (Act 205). If, however, there is partial intestacy and a husband or
wife died in circumstances rendering it uncertain which of them survived the other, the presumption does not apply in
respect of his or her estate undisposed of by the will and that part of the estate devolves as if the other spouse did not
survive: see the Distribution Act 1958 (Act 300) s 6(3). As to the presumption of the fact of death from absence without
being heard of for seven years, see the Evidence Act 1950 (Act 56) s 108 and EVIDENCE (2011 Reissue) [500.057]. See
also Ee Hoon Soon v Chin Chay Sam (1889) 1 SLJ 147.
[330.018]
Giving of receipts
Page 17
Although a minor is capable of being a donee under a will, he cannot give the personal representatives a
valid receipt for the gift except where he is expressly or impliedly authorised to do so by the testator1.
Similarly, a person suffering from mental disorder may be a donee, but, while so suffering, cannot give
the personal representative a valid receipt2. In the case of a gift to a charity or non-charitable society it is
prudent to provide that the receipt of the treasurer or proper officer is to be sufficient discharge to the
executor3.
1 The Guardianship of Infants Act 1961 (Act 351) s 16 states that a guardian of the property of an infant is not, unless in
any case the court or a judge otherwise orders, empowered to give a good discharge for any legacy or other capital
monies payable to or receivable by an infant. Therefore, unless a court order is obtained by the guardian of the infant
beneficiary, the guardian has no statutory power to receive or recover for the beneficiary the gift under the will. See also
FAMILY LAW (2013 Reissue) [390.084]. As to the age of majority see [330.009] note 2.
2 Under the Mental Health Act 2001 s 59, there is no statutory provision empowering the committee of the mentally
disordered person's estate to receive or recover property for the benefit of the mentally disordered person. It would appear
that a court order would be necessary, before the committee could do so.
3 See Leahy v A-G for New South Wales [1959] AC 457 at 477, [1959] 2 All ER 300 at 306, PC, per Viscount Simonds .
Page 18
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ D. Donees/ (ii) Disqualification for
Benefiting
(ii) Disqualification for Benefiting
[330.019]
Gifts to witnesses
Any beneficial devise, legacy, estate, interest, gift or appointment, other than charges or directions for
the payment of debts, so far only as it concerns any person attesting the execution of any will1 by which
it is given, or the wife or husband of that person, or any person claiming under that person or wife or
husband, is utterly null and void2. A power in a will enabling a solicitor-trustee to charge profit costs
against the estate is such a beneficial interest3. A gift to a witness merely as trustee is valid4.
1 For the meaning of 'will' see [330.001]. As to attestation of the will see also [330.031]-[330.034].
2 See the Wills Act 1959 (Act 346) s 9.
3 Re Barber, Burgess v Vinnicome (1886) 31 Ch D 665.
4 Cresswell v Cresswell (1868) LR 6 Eq 69. See also Re Ray's Will Trusts, Re Ray's Estate, Public Trustee v Barry [1936]
Ch 520, [1936] 2 All ER 93.
[330.020]
Gift by codicil
The gift is only avoided where the witness has attested the instrument under which he takes, and a gift in
a will consisting of separate sheets of paper separately attested may be valid if the legatee has not
attested the sheet on which his gift appears.
A gift by will to a legatee is not forfeited by his attesting a codicil confirming the will1, unless he receives
a benefit by the codicil, for instance if the codicil makes a contingent gift absolute2; but the fact that the
codicil, by revoking gifts in the will, increases the residue of which he gets a share is not such a benefit3.
Conversely, a codicil duly executed confirming a will containing a gift to an attesting witness to the will
renders the gift valid4, but the validity so acquired is not destroyed by the legatee's attesting a
subsequent codicil5.
1 Re Fleetwood, Sidgreaves v Brewer (1880) 15 Ch D 594; Gurney v Gurney (1855) 3 Drew 208. See also Tempest v
Tempest (1856) 2 K & J 635; Re Marcus, Marcus v Marcus (1887) 57 LT 399.
2 Gaskin v Rogers (1866) LR 2 Eq 284.
3 Gurney v Gurney (1855) 3 Drew 208.
4 Anderson v Anderson (1872) LR 13 Eq 381; Re Trotter, Trotter v Trotter [1899] 1 Ch 764.
5 Thorpe v Bestwick (1881) 6 QBD 311; Re Trotter, Trotter v Trotter [1899] 1 Ch 764.
Page 19
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ D. Donees/ (iii) Uncertainty as to
Donee
(iii) Uncertainty as to Donee
[330.021]
Donee must be identifiable
In order to be a donee under a will, a person must be so named or described that his identity can be
established with certainty; otherwise the gift is void1. Difficulty of ascertainment is not in itself fatal to the
validity of the gift; it is a matter of degree, and it is only when, on the evidence, the gift is so vague, or the
difficulty is so great, that it must be treated as virtually incapable of resolution, that the gift is void for
uncertainty2.
If the will requires or allows, the description may be acquired by the donee after the date of the will on
any future event and contingency. There may thus be a gift to a child en ventre sa m re, or other persons
unborn or not ascertained at the date of the will, or to a class, that is to say, to persons who are intended
to be ascertained as those composing a described fluctuating body of persons at a particular future
time3. In the case, however, of such gifts to take effect in the future, the rules of law designed to prevent
perpetuity must be observed.
1 For an example of gifts void for uncertainty in this respect see Re Chionh Ke Hu (decd) [1964] MLJ 270 (persons
professing or practising the Buddhist religion). See also Lord Cheyney's Case (1591) 5 Co Rep 68a at 68b; Webb's Case
(1607) 1 Roll Abr 609 (20 of the poorest of the testator's kindred); Beal v Wyman (1650) Sty 240 (the heirs male of any of
the testator's son or next of kin). A direction to trustees to make payments to such of the testator's children as appeared to
be most in need was held not void for uncertainty (Mitchell's Trustees v Fraser 1915 SC 350); nor was a direction to make
payments to such of the testator's children and grandchildren as the trustee should think most deserving (Magee v Magee
[1936] 3 All ER 15, PC ); nor one to make payments to necessitous nieces and nephews (Re Parker, Kilroy and Callan v
Parker and McGauran [1966] IR 309). A bequest for the benefit of the testator's family was held not void for uncertainty:
Jong Chan Siong v Loh Shui Kin [1973] 1 MLJ 245, FC , where the court considered expert evidence in reading the will
and the word 'family' used in the will was given its ordinary meaning according to usage among the 'Tai Poo Kheh'
community (because the testator was a Tai Poo Kheh) and was read to mean all the adopted sons of the testator. See
also Yeap Leong Huat v Yeap Leong Soon [1989] 3 MLJ 157, SC , where a bequest to children of son from principal wife
was held not void as testator was permitted by his personal law a plurality of wives by Chinese customary marriage; in Re
Cheah Seong Geok (decd) [1935] MLJ 10, a devise bequest to the sole executor upon trust to get in, sell and to divide,
apportion make over and deliver all proceeds of sale in the usual manner or custom of the Chinese between and to
himself, his mother and three brothers in such proportions usually adopted in such and similar cases and, also with full
power to hold detain or otherwise keep the said portions as to him may seem most expedient or desirable to the benefit of
the person receiving the same or his own benefit, was held not void for uncertainty. The sole executor died without having
exercised the powers and the court executed the trust and the property which remains unadministered should be divided
equally amongst the ascertained objects.
2 Re Eden, Ellis v Crampton [1957] 2 All ER 430, [1957] 1 WLR 788.
3 Wong Kai Woon v Wong Kong Hom [1991] 2 MLJ 469, [1991] SLR 353 (any member of the class entitled to the
residuary estate who has survived the testator but dies before closing of the class, has a vested interest, and the estate of
such deceased member would be within the class to whom distribution must be made provided that the contingency of
surviving that period of distribution is not part of the description of the class).
Page 20
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ E. Appointment of Executors and
Trustees/ (i) Appointment
E. APPOINTMENT OF EXECUTORS AND TRUSTEES
(i) Appointment
[330.022]
Appointment by testator
The ordinary method of appointing an executor is for a testator to appoint an executor by his will. The
testator may nominate a person in the body of his will by the express designation of an executor1. A
testator may appoint any number of executors; but probate may not be granted to more than four
persons with regard to the same property2. Where several executors are appointed, probate may be
granted to all of them simultaneously or at different times3. Where probate is granted to one or some of
two or more persons named as executor, probate may be granted with or without power reserved to the
others to prove4. The appointment of an executor by the testator may be implied5. Even though a
testator may fail to nominate a person in express terms to be his executor, yet, if upon a reasonable
construction of his will it appears that a particular person has been appointed to perform the essential
duties of an executor, such an appointment is sufficient to constitute that person an executor6.
1 The Probate and Administration Ordinance 1959 (FM Ord No 35 of 1959) applied only to West Malaysia on or after 1
February 1960 and has since been superseded and the revised edition of the Probate and Administration Act 1959 (Act
97) which came into force on 1 November 1972. See also the Probate and Administration Act 1959 s 3(1) and (2). For the
meaning of 'executor' see [330.242] note 4. See further [330.248] and following.
2 Probate and Administration Act 1959 s 4(1); and see [330.249]. The words 'the same property' were construed in the
English case Re Holland [1936] 3 All ER 13 to mean 'the same estate'.
3 Probate and Administration Act 1959 s 3(3); and see [330.361].
6 See Re Collett (1857) Den & SW 274; Re Adamson (1875) LR 3 P & D 253, the court defined the essential duties of an
executor to consist of the collection of the deceased's assets, the payment of his funeral expenses and debts, and the
discharge of the legacies. See also the Probate and Administration Act 1959 s 68(1), (7).
[330.023]
Statutory appointment of executor
The court has statutory power to appoint additional executors in specified cases1.
1 Probate and Administration Act 1959 (Act 97) s 4(3), (4); and see [330.248], [330.251]. For the meaning of 'executor' see
[330.242] note 4. See eg Siu Yan Tam (f) v Collin Swee Lay Keong [2012] 7 MLJ 495 (wife left out of will applied to be
appointed executor instead of deceased's brother; application unsuccessful).
Page 21
[330.024]
Different executors for different properties
A testator may appoint different executors1 for different parts of his estate2; this is commonly done where
the testator has certain of his property3 in Malaysia and other property abroad4. Probate5 may be
granted to an executor subject to such exceptions as the will require and in any such case a further grant
may be made on that part of the estate so excepted6.
1 For the meaning of 'executor' see [330.242] note 4.
2 For the meaning of 'estate' see [330.242] note 3.
4 Probate and Administration Act 1959 (Act 97) s 63; and see [330.252].
5 For the meaning of 'probate' see [330.244] note 7.
6 Probate and Administration Act 1959 s 24; and see [330.252].
[330.025]
Conditional and substituted appointments
A testator may appoint his widow to be his executrix during her widowhood, or his son to be his executor
upon attaining his majority1. He may make the appointment conditional upon the happening of a certain
event, and he may provide for the determination of the appointment or the substitution of the executor for
another upon the happening of a given event2.
1 As to the appointment of executors see [330.248] and following.
2 See [330.253].
Page 22
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ E. Appointment of Executors and
Trustees/ (ii) Persons Eligible for Appointment
(ii) Persons Eligible for Appointment
[330.026]
No restriction upon choice
No restriction whatever exists upon the choice of an executor. In the case of a natural person being
appointed as executor, he or she must have attained the age of majority and be of sound mind when
probate of the will is granted1. Where a corporation or body is appointed an executor in a will, the
corporation or body must be empowered under its constitution to act as executor and trustee. It is
common for a testator to appoint a trust corporation2 as a sole executor and where a trust corporation is
appointed an executor in a will, either alone or jointly with another person, probate may be granted to the
corporation either solely or jointly with another person, as the case may require3. However, probate may
not be granted to a syndic or nominee on behalf of any trust corporation4.
1 Probate and Administration Act 1959 (Act 97) ss 20(1), 21; and see [330.438], [330.256]. Where the executor is a minor,
then letters of administration with the will annexed may be granted to the guardian of the person and property of the minor
limited until the minor obtains a grant himself and where the executor is a person of unsound mind, then letters of
administration with the will annexed may be granted to a person to whom the care of his estate has been lawfully
committed, for the use and benefit of the person of unsound mind, until he becomes of sound mind and obtains a grant to
himself. See United Asian Bank Bhd v Personal Representative of Roshammah (decd) [1994] 3 MLJ 327, where the court
held that the deceased's bankrupt husband could be appointed representative of the wife's estate, by virtue of the
Bankruptcy Act 1967 (Act 360) and the court is empowered to allow a bankrupt to manage the business of his spouse. See
also [330.255], [330.256].
2 'Trust corporation' means the Corporation (Amanah Raya Berhad), or a company incorporated under the Trust
Companies Act 1949 (Act 100), or the corresponding written law in force in Sabah or Sarawak: Probate and Administration
Act 1959 s 2. As to the Amanah Raya Berhad generally see [330.247]. See also [330.257].

Page 23
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ F. Preparation and Execution/ (i)
Instructions for a Will
F. PREPARATION AND EXECUTION
(i) Instructions for a Will
[330.027]
Matters with which the will may deal
It is desirable that a will should make provision in an orderly manner for the disposition of the testator's
property, the appointment of executors1, and, if the testator has children who are minors, the
appointment of guardians of the minors2. The testator if he so desires, and where the estate is solvent,
may provide that the statutory order3 in which assets are applied for the payment of his debts and
liabilities be varied, and the will should make express provision accordingly. Where property is settled, it
is desirable that the will should leave no doubt as to the destination of the settled property, and it is
essential to guard against any infringement of the rule against perpetuities. It should be borne in mind by
the testator that after his death a spouse or child who comes within the definition of dependant in the
Inheritance (Family Provision) Act 19714 for whom reasonable financial provision has not been made
may apply5 to the court under that Act for an order for such provision to be made from the testator's net
estate for the maintenance of that dependant.
It must be ensured that the will as prepared has in all respects the knowledge and approval of the
testator, as these are essential to validity6. If the testator has been sick7 or suffering from mental
disorder but the will is made after recovery or during a lucid interval8, it is valid, but it is well to bear in
mind that the person who will in due course admit the will to probate may have the burden of proving that
the testator had capacity to make the will9.
1 See [330.022].
2 As to the nature and characteristics of wills see [330.001].
3 Ie the order set out in the Probate and Administration Act 1959 (Act 97) ss 68, 69(3), Sch 1 Pt II. See further [330.489]
and [330.511] and following.
4 Ie the Inheritance (Family Provision) Act 1971 (Act 39).
5 On such an application, the court must have regard to the nature of the property representing the testator's net estate,
the testator's reasons for failing to make reasonable financial provision, the applicant's conduct in relation to the testator,
any source of financial provision of the applicant and any other matter which it considers relevant in relation to that
applicant, to the persons interested in the estate, or otherwise and the court is not bound to assume that the law relating to
intestacy makes reasonable provision in all cases. See also [330.008].
6 See Dr K Shanmuganathan (suing by his attorney Dr A Puraviappan) v Periasamy s/o Sithambaram Pillai [1994] 2 CLJ
225 (where forgery was alleged; the court held that where there are circumstances that excite the suspicions of the court
as to whether or not a will expresses the true intent of the testator, then the court must be vigilant in examining the
evidence called in propounding the will to see if at the end of the case, such suspicions are removed or not). See also Re
Mana Seena Veeran (decd), Rajoo s/o Magalee Karuppiah v Hussain s/o M S Veeran [1976] 1 MLJ 1, [1975-1977] SLR
372 (where testator was in hospital); Subramaniam v Rajaratnam [1957] MLJ 11, CA . See further Tho Yow Pew v Chua
Kooi Hean [2001] 5 MLJ 578; Khaw Cheng Poon v Khaw Cheng Bok [2005] 6 MLJ 540, CA (cited at [330.010] note 2).
7 See Re Ng Toh Piew (decd), Tan Geok Eng v Lok Ah Ng [1950] MLJ 273; Morris v Norie Lim [1928-41] SCR 24.
8 See Re Eusoff Mohamed Salleh Angullia (decd) [1939] MLJ 100; Amanullah bin Haji Ali Hasan v Hajjah Jamilah binti
Sheik Madar [1975] 1 MLJ 30. See also Khaw Cheng Poon v Khaw Cheng Bok [2005] 6 MLJ 540, CA .
Page 24
9 Lim Gaik Teen Neoh v Lim Gaik Kee (1921) 2 BLSS 388, PC ; Udham Singh v Indar Kaur [1971] 2 MLJ 263, FC ; Dr K
Shanmuganathan (suing by his attorney Dr A Puraviappan) v Periasamy s/o Sithambaram Pillai [1994] 2 CLJ 225. See
also RC O 71 r 10. See further Tho Yow Pew v Chua Kooi Hean [2001] 5 MLJ 578, where the court held that where there
are suspicious circumstances lurking behind the execution of the will the onus is on the party propounding the will, to
remove, by way of explanations, such suspicious circumstances and that in order to test the testamentary capacity of the
deceased it is necessary to establish that at the time of executing the will the deceased was of sound mind, memory and
understanding. See also Khaw Cheng Poon v Khaw Cheng Bok [2005] 6 MLJ 540, CA (cited at [330.010] note 2); Eu
Boon Yeap v Ewe Kean Hoe [2008] 2 MLJ 868, CA (cited at [330.010] note 3); Sarah bt Abdullah @ Hew Lee Ling (p) v
Kwok Peck Wah (p) [2009] 6 MLJ 385, CA (cited at [330.010] note 2).A statutory declaration could be made to support a
will made in a lucid interval. Where there is any doubt about a testator's capacity, the will should be witnessed, if at all
possible, by the testator's medical attendant and solicitor and they should make statements as to the testator's capacity:
see Kenward v Adams (1975) Times, 29 November; Re Simpson, Schaniel v Simpson (1977) 121 Sol Jo 224; Buckenham
v Dickinson (unreported, 26 February 1997).
Page 25
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ F. Preparation and Execution/ (ii)
Requisites for Formal Validity/ (A) Writing
(ii) Requisites for Formal Validity
(A) Writing
[330.028]
Mode of execution
Every will1 other than a privileged will2 must be in writing3 and signed by the testator or by some other
person in his presence and by his direction; and the signature must be made or acknowledged by the
testator as the signature to his will in the presence of two or more witnesses present at the same time4.
There are no restrictions as to the materials, substance, thing or article with which, and upon which, a
will may be written5.
1 For the meaning of 'will' see [330.001]. The effect of the grant of probate and letters of administration with the will
annexed would be conclusive evidence of the due execution and validity of the will for so long as the grant remains
unrevoked: see Tan Chou Me (sebagai Penguasa Pesaka Mek Ke Ek a/p Eh Lai - si mati) v Eh Tiang a/l Eh Chan (as
representative of the estate of Eh Pit s/o Chau Sook, decd) [2000] MLJU 361.
2 As to the privileged wills of certain soldiers, airmen and sailors see [330.035].
3 Wills Act 1959 (Act 346) s 5(1).
4 Wills Act 1959 s 5(2). See Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457, where the court held that due
execution of the will was not proved; and see Khaw Cheng Poon v Khaw Cheng Bok [2005] 6 MLJ 540, CA , where the
will was not valid as the witness witnessed it in the absence of the deceased. In Wong Fong Yin v Wong Choi Lin [2013]
4 MLJ 82, the will was valid. See also Sarjit Singh a/l Kesar Singh v Harjindar Kaur a/p Koondan Singh [2016] 12 MLJ
27, CA . In Chenna Gounder a/l Kandasamy v Angamah a/p Sunappan [2017] 10 MLJ 387, the formalities of the Wills
Act 1959 s 5 had been met. It was also held that even though the will did not provide for the appointment of an executor
or trustee, this did not constitute any form of departure from the requirements of the Act which does not make such
appointment mandatory.
5 The writing may be made wholly or partly in pencil as well as in ink. A printed or lithographed form may be used, or part
of such a form may be used. 'Writing' includes type-writing, printing, lithography, photography, electronic storage or
transmission or any other method of recording information or fixing information in a form capable of being preserved: see
the Interpretation Acts 1948 and 1967 (Act 388) s 3. See also Re Usborne (1909) 25 TLR 519; Rymes v Clarkson (1809)
1 Phillim 22 at 25; Boughton-Knight v Wilson (1915) 32 TLR 146; Re Hall (1871) LR 2 P & D 256; Re Adams (1872) LR 2
P & D 367. See also Re Bellamy (1866) 14 WR 501.
Page 26
Requisites for Formal Validity/ (B) Signature
(B) Signature
[330.029]
Signature essential and methods of signature
To be valid, a will1 must be signed by the testator, or by another person2 on behalf of the testator3. The
signature must be intended as an act of executor with the purpose of giving effect to the will. A mark4 or
initials are sufficient if intended to represent a signature to a will, whether the testator can write or not5,
and an incomplete signature is sufficient where there is evidence that he intended it to be the best he
could do by way of writing his name6. A stamped signature may be sufficient7, and sealing a will with a
seal bearing the testator's initials has been held sufficient where the testator meant it to represent his
signature8, although a mere sealing is not9. The signature must have been made with a purpose of
authenticating the instrument, and accordingly a signature intended merely to guard against other
sheets being interpolated in a will is not sufficient10. Passing a dry pen over a signature already written
is not a good subscription of a will11, but it may amount to an acknowledgment of his signature by a
testator12.
Signature in an erroneous or assumed name, if intended as the name of the testator, is sufficient13, as
is a description which sufficiently identifies the testator and is intended to represent his name14. Where
a testator puts his mark to a will in which he is wrongly named, execution is valid15.
2 The signature of that person's own name expressly on behalf of the testator is sufficient and must be made in the
presence of and by direction of the testator: see the Wills Act 1959 (Act 346) s 5(2).
3 See the Wills Act 1959 s 5(2).
4 A mark made by the testator's thumb smeared with ink was allowed in the English case of Re Finn (1935) 105 LJP 36.
A mark of any shape, not necessarily a cross, is sufficient: Re Kieran (1933) IR 222. In Tok Siew Ling v Low Chee Choy
[2014] 9 MLJ 787, it was alleged that the testator's thumbprint had been affixed when she was not conscious.
5 For a suitable form of attestation in such a case see 23 The Encyclopaedia of Forms and Precedent (4th Edn) p 1139
Form 28: B:1.
6 Re Chalcraft, Chalcraft v Giles and Rance [1948] P 222, [1948] 1 All ER 700; cf Re Maddock (1874) LR 3 P & D 169
(incomplete signature of attesting witness).
7 Jenkins v Gaisford and Thring, Re Jenkins (1863) 3 Sw & Tr 93.
8 Re Emerson (1882) 9 LR Ir 443.
9 Smith v Evans (1751) 1 Wils 313; Grayson v Atkinson (1752) 2 Ves Sen 454 at 459; Ellis v Smith (1754) 1 Ves 11 at
13-15; Wright v Wakeford (1811) 17 Ves 454 at 459 (overruling Lemayne v Stanley (1681) 3 Lev 1).
10 Ewen v Franklin (1855) Dea & Sw 7; Re Dilkes (1874) LR 3 P & D 164; Phipps v Hale (1874) LR 3 P & D 166. See
also Sweetland v Sweetland (1865) 4 Sw & Tr 6.
11 Playne v Scriven (1849) 1 Rob Eccl 772; Kevil v Lynch (1874) IR 9 Eq 249.
12 Playne v Scriven (1849) 1 Rob Eccl 772; Lewis v Lewis [1908] P1 at 5. For a form of attestation of acknowledgment
see 23 The Encyclopaedia of Forms and Precedent (4th Edn) p 1138 Form 28; A:5.
13 Re Glover (1847) 5 Notes of Cases 553; Re Redding (1850) 2 Rob Eccl 339; Re Clarke (1858) 1 Sw & Tr 22.
14 Re Cook, Murison v Cook [1960] 1 All ER 689, [1960] 1 WLR 353 ('Your loving mother').
Page 27
15 Re Douce (1862) 2 Sw & Tr 593.
[330.030]
Position of signature
The signature of the testator or of the person signing for him, is deemed valid if the signature is placed
at1 or after, or following2, or under, or beside3, or opposite to the end of the will4, so that it is apparent
on the face of the will that the testator intended to give effect by the signature to the writing signed as
his will5. The validity of the will is not affected by the fact that the signature does not immediately follow
the end of the will6, or that a blank space intervenes between the end of the will and the testator's
signature7, or that the signature is on a page or side containing no clause, paragraph or disposing part
of the will8, or that there is sufficient space in the preceding page to contain the signature9. No
signature is operative, however, to give effect to any disposition which is underneath or which follows
it10, or to any disposition or direction inserted after the signature has been made11.
1 Re Woodley (1864) 3 Sw & Tr 429 (signature across last two lines). A signature or mark in the middle of a will is not
sufficient: Margary v Robinson (1886) 12 PD8. See also Re Walter le Cain, Simonides v Brace (1893) 1 SSLR 153. This
case was extraordinary in that the will was written on the back of a cheque and within five minutes after attestation, the
testator died, parol evidence was admitted to show which is the foot or end of a will.
2 Re Wright (1865) 4 Sw & Tr 35 (signature across third page of a sheet of notepaper); Re O'Neill (1916) 50 ILT 80
(signature of testator below those of the witnesses).
3 Re Jones (1865) 4 Sw & Tr 1 (signature at side of attestation clause); Re Williams (1865) LR 1 P & D 4 (signature
opposite last words of will); Re Roberts [1934] P 102 (signature in margin). See however, Re Hughes (1887) 12 PD 107,
where a codicil was executed by a signature in the margin of the will in the mistaken belief that the codicil constituted an
alteration of the will, and probate of the codicil was refused.
5 See the Wills Act 1959 (Act 346) s 5(2). The corresponding English provision is in the Wills Act 1837 (UK) s 9 (as
originally enacted, which has since been substituted by the Administration of Justice Act 1982 (UK) s 17). A signature
has been held to be valid where it was placed in the testimonium clause (Re Mann (1858) 28 LJP & M 19; Re Torre
(1862) 8 Jur NS 494); the attestation clause (Re Walker (1862) 2 Sw & Tr 354; Re Huckvale (1867) LR 1 P & D 375; Re
Casmore (1869) LR 1 P & D 653; Re Pearn (1875) 1 PD 70; Re Moore [1901] P 44); following or after or under the
clause of attestation (Re Standley (1849) 7 Notes of Cases 69), either with or without a blank space intervening;
following or after or under or beside the names or one of the names of the subscribing witnesses (see Re Jones (1865) 4
Sw & Tr 1; Re Puddephatt (1870) LR 2 P & D 97 (beneath); Re Horsford (1874) LR 3 P & D 211 (following page); Byles v
Cox (1896) 74 LT 222); and in a box-like space deliberately reserved for the signature but placed among the dispositive
words (Re Hornby [1946] P 171, [1946] 2 All ER 150). Cf Re Harris, Murray v Everard [1952] P 319, [1952] 2 All ER 409,
where the signature was written at the top and towards the right-hand side of the will under the words 'My last will and
testament', and probate was refused.
6 Page v Donovan and Hankey (1857) 3 Jur NS 220, where a notarial certificate intervened.
7 Re Fuller [1892] P 377; Re Williams (1865) LR 1 P & D 4; Re Little, Foster v Cooper [1960] 1 All ER 387, [1960] 1 WLR
495.
8 Re Williams (1865) LR 1 P & D 4; Hunt v Hunt (1866) LR 1 P & D 209.
9 Re Williams (1865) LR 1 P & D 4; Hunt v Hunt (1866) LR 1 P & D 209; Re Archer (1871) LR 2 P & D 252.
10 Re Greata (1856) 2 Jur NS 1172; Re Dallow (1866) LR 1 P & D 189; Re Woods (1868) LR 1 P & D 556; Re White
[1896] 1 IR 269; Re Evans (1923) 128 LT 669. See also Re Beadle, Mayes v Beadle [1974] 1 All ER 493, [1974] 1 WLR
417, where it was held that a signature on a envelope containing an insufficiently executed will merely identified the
document enclosed in it.
11 Re Arthur (1871) LR 2 P & D 273; Re Little, Foster v Cooper [1960] 1 All ER 387, [1960] 1 WLR 495.
Page 28
Requisites for Formal Validity/ (C) Attestation
(C) Attestation
[330.031]
Requirements for attestation
The testator's signature must be made or acknowledged by him in the presence of two or more
witnesses present at the same time1. In the testator's presence, each witness must attest and sign the
will after the testator's signature has been so made or acknowledged. Although it is not essential for the
attesting witness to sign in the presence of each other, it is usual for them to do so2. Each witness
should be able to say with truth that he has seen the testator sign the document3 but it is not necessary
that the witness should know that it is the testator's will4.
1 Wills Act 1959 (Act 346) s 5(2).
2 Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, FC , where both attesting witnesses did not
sign in the presence of each other and the court held that this did not invalidate the will.
3 Brown v Skirrow [1902] P 3 at 5. See also Couser v Couser [1996] 3 All ER 256, [1996] 1 WLR 1301.
4 Re Benjamin (1934) 150 LT 417; Re Gibson [1949] 2 All ER 90.
[330.032]
Form of attestation
Although no form of attestation is necessary1, it is always desirable to have an attestation clause

showing that the statutory requirements have been complied with2. In the absence of such a clause, the
Registrar requires an affidavit of due execution from one or both of the attesting witnesses to be filed in
support of the application for the grant of probate, before probate can be obtained3.
1 See the Wills Act 1959 (Act 346) s 5(2); and [330.031].
2 For forms of attestation clause see 23 Encyclopaedia of Forms and Precedents (4th Edn).
3 See RC O 71 r 9(1); even where there is an attestation clause, it is the normal practice of the Registrar to require an
affidavit of due execution from at least one of the attesting witnesses to be obtained and if no affidavit can be obtained,
the Registrar may accept evidence of any matter which may raise a presumption in favour of the execution of the will:
see O 71 r 9(2). As to the grant of probate see [330.308] and following.
[330.033]
Presumption of due execution
There is a presumption of due execution where the will is regular on the face of it, with a proper
attestation clause and the signatures of the testator and witnesses in their proper places1; but this
Page 29
presumption may be rebutted by the evidence of the attesting witnesses2 or otherwise3. Where there is
an attestation clause, and the attesting witnesses are dead or otherwise not available, the presumption
of due execution may be applied, where there is evidence on affidavit to show that the signature or the
will is in the handwriting of the testator, or of any other matter which may raise a presumption in favour
of the execution of the will. If the Registrar, after considering the evidence is satisfied that the will was
not duly executed, he must refuse probate; or if he is doubtful whether the will was duly executed, he
may refer the matter to the court4.
The burden of proving due execution, whether by presumption or by positive evidence, rests on the
executors or such other persons setting up the will5.
1 Couser v Couser [1996] 3 All ER 256, [1996] 1 WLR 1301. As to the form of attestation see [330.032].
2 Clear evidence is needed to rebut the presumption; and the presumption of due execution will still be applied where the
evidence shows that the will might not have been duly executed but does not demonstrate that it was not: see
Weatherhill v Pearce [1995] 2 All ER 492, [1995] 1 WLR 592.
3 Re Parslow, Parslow (1959) Times, 3 December (evidence of handwriting expert that attestation was forged by
testatrix).
4 See RC O 71 r 9(3).
5 Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, FC (the plaintiff by alleging forgery, could
compel the executor to propound the will in solemn form). See also Estate of Loh Ah Tong, Low Siew Lan v Tan Ah Eng
[1949] Supp MLJ 33.
[330.034]
Capacity of witnesses
There is no statutory provision that forbids any person from witnessing a will. There is also no statutory
provision which sets out who is qualified to witness a will. It is prudent to ensure that the attesting
witness is of sound mind and is not a minor and if required, the witness should be able to testify in
support of the execution of the will. A will is not invalid because at the time of execution or at any time
afterwards any person attesting the execution is incompetent to be admitted as a witness to prove its
execution1. Executors2, creditors3 and their wives or husbands, and beneficiaries4 and their wives or
husbands, are all admissible witnesses to prove the execution of a will or to prove its validity or
invalidity, but a gift to an attesting witness or to the wife or husband of such a witness is void5.
1 Wills Act 1959 (Act 346) s 8.
2 Wills Act 1959 s 11.
5 Wills Act 1959 s 9. See also [330.019].

Page 30
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ F. Preparation and Execution/ (iii)
Privileged Wills
(iii) Privileged Wills
[330.035]
Wills of soldiers, airmen and sailors
A soldier (that is, a member of the armed forces of Malaysia) in actual military service, a mariner or
seaman (including a member of the naval forces of Malaysia) being at sea is entitled to make a
privileged will1. A privileged will is not required to conform to the requirements of the Wills Act 19592,
either as regards writing, or if in writing, as regards execution, and is valid even though the testator is
under eighteen years of age3. In order for a soldier's or sailor's or airman's will to constitute a privileged
will, it must amount to a declaration or disposition, oral or in writing, made by or at the directions of the
testator which manifests the intentions of the testator which he desires to be carried out or to the
guardianship, custody and tuition of a child or to the exercise of a power of appointment4. A declaration
may be a valid privileged will notwithstanding that it was not executed in the manner appearing to have
been intended by the testator or that it was intended by the testator subsequently to execute a formal will
to give effect to his testamentary dispositions, unless it appears that the failure to execute such
declaration in such manner or such formal will was due to the abandonment by the testator of the
testamentary intentions expressed of such declaration5.
A privileged will, whether formal or informal, may be revoked by a letter or other informal act expressing
an intention to revoke, without any new will, provided that the circumstances of the revocation are the
same as are required to give validity to a privileged will6. A privileged will Is nullified at the expiration of
one month after the testator, being still alive, has ceased to be entitled to make a privileged will7.
1 Wills Act 1959 (Act 346) s 26(1).
2 Ie under the Wills Act 1959 ss 4, 5, and 6. See also [330.028] and following.
3 Wills Act 1959 s 26(4).
4 Wills Act 1959 s 26(2).
5 Wills Act 1959 s 26(3).
6 Re Gossage, Wood v Gossage [1921] P 194, CA (Eng) .
7 Wills Act 1959 s 26(5).

Page 31
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ G. Alterations and Erasures
G. ALTERATIONS AND ERASURES
[330.036]
Due execution required and time of alteration
No obliteration, interlineation or other alteration made in any will after execution is valid unless such
alteration is duly executed, except so far as the words or effect of the will before such alteration are not
apparent1. An alteration is deemed duly executed if the signature of the testator and the subscription of
the witnesses are made in the margin or on some other part of the will opposite or near to such alteration
or at the foot or end of or opposite to a memorandum referring to such alteration and written at the end or
some other part of the will2. The initials of the testator and the witnesses are sufficient for this purpose, but
the initials of the witnesses alone are not3.
In the absence of evidence, the presumption is that alterations, interlineations and erasures were made
after execution, and the burden is on the person who seeks to rely on an alteration in a will to adduce
some evidence that the alteration was made before the will was executed4. Evidence of declarations of
testamentary intention made by the testator before or at the time of execution suffices to displace the
presumption5, and so does evidence of other persons that the alterations were made before execution6.
Any evidence which, having regard to the circumstances, reasonably leads to the conclusion that the
alterations were made before execution is sufficient7.
1 'Apparent' means apparent on an inspection of the instrument, not apparent by extrinsic evidence: see Ffinch v Combe
[1894] P 191; Townley v Watson (1844) 3 Curt 761 at 764; Re Brasier [1899] P 36; if alterations are apparent, but are not
validly effected by the testator, then probate would be granted as regards the will as originally worded if the original words
were still legible (Re Choo Kim Kiew (decd), Chua Keng Geok v British Malaya Trustee & Executor Co Ltd [1949] MLJ 144),
the testatrix's alterations not being duly attested and held not valid and probate as regards the original words was granted.
2 Wills Act 1959 (Act 346) s 15.
3 Re Blewitt (1880) 5 PD 116; Re Cunningham (1860) 4 SW & Tr 194. For the form of attestation of an altered will see 23
Encyclopaedia of Forms and Precedents (4th Edn) p 1138 Form 28:A:4.
4 Cooper v Bockett (1846) 4 Moo PCC 419. Where there appears any alteration not authenticated in the manner prescribed
by the Wills Act 1959 s 15 or by re-execution of the will or by execution of a codicil, the Registrar must require evidence to
show whether the alteration was present at the time the will was executed and must give directions as to the form in which
the will is to be proved: RC O 71 r 11. See also Simmons v Rudall (1851) 1 Sim NS 115 at 137; Greville v Tylee (1851) 7
Moo PCC 320; Doe d Shallcross v Palmer (1851) 16 QB 747; Re James (1858) 1 Sw & Tr 238; Williams v Ashton (1860) 1
John & H 115; Re Benn [1938] IR 313.
5 Re Sykes (1873) LR 3 P & D 26 at 27. See also Doe d Shallcross v Palmer (1851) 16 QB 747; Dench v Dench (1877) 2
PD 60; Re Oates, Callow v Sutton [1946] 2 All ER 735. Declarations as to unattested alterations made after execution of the
will are not admissible: Re Jessop [1924] P 221.
6 Tyler v Merchant Taylors' Co (1890) 15 PD 216; Re Greenwood [1892] P7.
7 Moore v Moore (1872) IR 6 Eq 166; Re Tonge (1891) 66 LT 60.

Page 32
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ H. Revocation/ (i) Revocation by
Marriage
H. REVOCATION
(i) Revocation by Marriage
[330.037]
General rule
With certain exceptions, a will1 is revoked by the testator's marriage2. However, a will made in exercise
of a power of appointment takes effect notwithstanding the testator's subsequent marriage, unless the
property so appointed would in default of appointment pass to his heir, personal representatives or the
person entitled in case of his intestacy3.
A will expressed to be made in contemplation of a particular marriage is not revoked by the

solemnisation of the marriage contemplated; and this applies notwithstanding that the marriage
contemplated is the first, second or subsequent marriage of a person lawfully practising polygamy; a
general statement that it was made in contemplation of marriage is not sufficient4. It is enough if on the
terms of the will and in the circumstances the will 'practically expressed' that it was made in
contemplation of the particular marriage5.
2 Wills Act 1959 (Act 346) s 12. As to examples of revocation by the subsequent marriage of the testator see Re Lee Kim
Chye (decd) [1936] MLJ 49 (a Chinese man married a secondary wife after making his will, such marriage revoked the
will); Re Shaik Abubakar bin Mohamed Lajam (decd) [1935] MLJ 137.
3 Wills Act 1959 s 12. As to intestate succession see [330.645] and following.
4 Salls v Jones [1936] P 43.
5 Pilot v Gainfort [1931] P 103, where the testator referred to the woman whom he shortly afterwards married as 'my wife'.
Page 33
Administration and Succession/(1) Wills/(1) Testamentary Disposition/ H. Revocation/ (ii) Voluntary
Revocation/ (A) In General
(ii) Voluntary Revocation
(A) In General
[330.038]
Revocable nature of will
A will is of its own nature revocable, and, even though a testator attempts to make his will irrevocable
by the use of the strongest and most express terms, he may nevertheless revoke it, because his own
act and deed cannot alter the judgement of law to make that irrevocable that is of the own nature
revocable1.
1 Vynior's Case (1609) 8 Co Rep 81b. See also [330.002].
[330.039]
Intention to revoke
To effect a revocation there must be an intention to revoke, and a will may not be revoked by any
presumption of an intention on the ground of an alteration in circumstances1. An expression of an
intention to revoke not accompanied by an act of revocation is not sufficient2. Similarly, an act of
revocation done without that intention is also wholly ineffectual even if the act results in the destruction
of the will3. The intention to revoke must be accompanied by an act of revocation, and an expression of
intention to revoke at some future time or by some future instrument is not sufficient4. The intention to
revoke may be expressed by declaration of testator, or inferred from the nature of the act done5. Once
due execution of a will is proved, the burden of showing that it has been revoked lies upon those who
seek to establish revocation, and in the absence of proof, revocation is not presumed6.
1 Wills Act 1959 (Act 346) s 13.
2 See Re Mana Seena Veeran (decd), Rajoo s/o Magalee Karuppiah v Hussain s/o M S Veeran [1976] 1 MLJ 1,
[1975-1977] SLR 372. As to the act of revocation see [330.040].
3 Clarkson v Clarkson (1862) 2 SW & Tr 497; Re Thornton (1889) 14 PD 82; James v Shrimpton (1876) 1 PD 431.
4 See the Wills Act 1959 s 14. See also Cleoburey v Beckett (1851) 14 Beav 835.
5 Clarke v Scripps (1852) 2 Rob Eccl 563.
6 Harris v Berrall (1858) 1 Sw & Tr 153. See also Re Mana Seena Veeran (decd), Rajoo s/o Magalee Karuppiah v
Hussain s/o M S Veeran [1976] 1 MLJ 1, [1975-1977] SLR 372.
[330.040]
Page 34
Act of revocation
Voluntary revocation1 of a will2 or codicil can only be effected:
(1) by another later will or codicil duly executed; or

(2) by some writing declaring an intention to revoke the will or codicil and duly executed as a
will; or
(3) by the burning, tearing or otherwise destroying of the will or codicil by the testator, or by
some person in his presence and by his direction, with the intention of revoking it3.
No transfer, conveyance, assignment or other act made or done subsequently to the execution of a will
or codicil of or relating to any property comprised in it, except an act by which the will or codicil is
revoked, prevents the operation of the will with respect to such estate, right, share or interest in such
property as the testator has power to dispose of by will at the time of his death4.
A will is not destroyed by being struck through with a pen, even though done with the intention to
revoke, for cancelling is not one of the modes of revocation5.
As a will speaks from the testator's death and can only be revoked in one or other of the prescribed
ways, a testator cannot delegate the power to revoke his will after his death6. A testator cannot by
letters addressed to his solicitors informing them of his intention to have his will revoked, effect
revocation even though he might have done everything that he considered necessary to revoke his
will7.
The words 'last will' do not necessarily operate to revoke all previous wills, nor even the words 'last and
only will'; but, where it is clear from the general tenor of the last will that the testator did not intend an
earlier will to remain in force, the earlier will is revoked8.
1 As to revocation by marriage see [330.037].
3 Wills Act 1959 (Act 346) s 14. As to the necessity for an intention to revoke see [330.039].
5 Stephens v Taprell (1840) 2 Curt 458 at 465; Re Brewster's Goods (1859) 6 Jur NS 56. The words 'otherwise
destroying' in the Wills Act 1959 s 14, mean destroying by some method ejusdem generis with those described in s 14.
6 Stockwell v Ritherdon (1848) 1 Rob Eccl 661.
7 Re Mana Seena Veeran (decd), Rajoo s/o Magalee Karuppiah v Hussain s/o M S Veeran [1976] 1 MLJ 1, [1975-1977]
SLR 372.
8 Cutto v Gilbert (1854) 9 Moo PCC 131; Simpson v Foxon [1907] P 54; Pepper v Pepper (1870) IR 5 Eq 85; Dempsey v
Lawson (1877) 2 PD 98.
[330.041]
Partial revocation
Either the whole or part only of a will1 may be revoked2. The intention to revoke governs the extent and
measure of operation to be attributed to an act of revocation that may extend either to the whole or part
only of a will3. Where revocation of part makes the rest of the will unintelligible, total revocation results4.
There is a general rule that, if two parts of a will are totally inconsistent and cannot possibly be
Page 35
reconciled (for example, by dealing differently with the same subject mater), the latter clause or
disposition revokes the prior clause. This rule is applied only after the failure of every endeavour to give
such reasonable construction to the entire dispositions so as to render every part of the will operative or
reconcilable5.
An interest clearly given by a will must not, however, be treated as taken away by a revocatory clause
in a codicil unless that intention is clearly expressed6.
2 Wills Act 1959 (Act 346) s 14. As to the act of revocation see [330.040].
3 Clarke v Scripps (1852) 2 Rob Eccl 563; Re Woodward (1871) LR 2 P & D 206.
4 Leonard v Leonard [1902] P 243.
5 Re Tan Saw Gan (decd), Yeo Choon Hooi v Yeo Seiw Gnoh [1968] 1 MLJ 17; Gan Kim Heng v Lee Siew Seok [1970]
1 MLJ 85, FC .
6 Re Wray, Wray v Wray [1951] 1 Ch 425, [1951] 1 All ER 375, CA (Eng) , where a codicil which revoked the
appointment of the executrix and directed that the will should take effect as if her name was omitted did not prevent her
taking a beneficial interest.
[330.042]
Presumption of intention
Where a will is found destroyed or mutilated, in a place in which the testator would naturally put it if he
thought he had destroyed it, the presumption is that the testator destroyed it, with the intention to
revoke1. However, this presumption only applies prima facie and may be rebutted2. Similarly, if a will
was last traced to the possession of the testator and is not forthcoming at his death, there is a prima
facie presumption, in the absence of circumstances tending to a contrary conclusion, that it was
destroyed by the testator with the intention to revoke it3. The presumption may be rebutted by
evidence, which, however, must be clear and satisfactory. The possibility that the will was destroyed
without the privity or consent of the testator, or after his death, is a circumstance to be taken into
account, but there is a presumption against fraudulent destruction4.
1 Davies v Davies (1753) 1 Lee 444; Magnesi v Hazelton (1881) 44 LT 586.
2 Patten v Poulton (1858) 1 SW & Tr 55. See also RC O 71 r 12, where there is any appearance of attempted revocation
of a will by burning, tearing or otherwise and every circumstance leading to a presumption of revocation by the testator, it
must be accounted for to the Registrar's satisfaction.
3 Lillie v Lillie (1829) 3 Hag Ecc 184; Sugden v Lord St Leonards (1876) 1 PD 154 at 217, CA (Eng) ; Allan v Morrison
[1900] AC 604, PC . The presumption applies equally to a codicil: Re Shaw (1858) 1 Sw & Tr 62. However, the
presumption of destruction with an intention to revoke, does not apply in the case where the testator was of sound mind
when executing the will but subsequently became mentally disordered. See also Eu Boon Yeap v Ewe Kean Hoe [2008]
2 MLJ 868, CA (cited at [330.010] note 3); Sarah bt Abdullah @ Hew Lee Ling (p) v Kwok Peck Wah (p) [2009] 6 MLJ
385, CA (cited at [330.010] note 2).
4 Finch v Finch (1867) LR 1 P & D 371; Allan v Morrison [1900] AC 604, PC .

Page 36
Revocation/ (B) Revival
(B) Revival
[330.043]
Methods of revival
The only methods prescribed by the Wills Act 19591 by which a revoked will or a revoked part of a will
can be revived are either re-execution or the execution of a codicil showing an intention to revive, and
where a will which has been partly revoked, and afterwards wholly revoked, is revived, the revival does
not extend to the part first revoked unless an intention to the contrary is shown2.
For the purpose of reviving a revoked will, no precise form of words is necessary, nor need the reviving
instrument be annexed to or indorsed on the will3. For a will to be revived, however, it must be in
existence; hence a will that has been destroyed cannot be revived4.
1 Ie the Wills Act 1959 (Act 346).
2 Wills Act 1959 s 16(1), (2). It follows that where a will has been revoked by a later will, the revocation of the second
will, whether by marriage, destruction or by codicil, does not have the effect of reviving the first will, and, where the first
will has been partially revoked by the second, either expressly or impliedly in consequence of a different disposition of
part of the testator's property, the cancellation of the second will does not revive the revoked part of the first: see Stride v
Sandford (1853) 17 Jur 263; Re Hodgkinson (1893) P 339, CA (Eng) . As to revocation see [330.038]-[330.042].
3 Potter v Potter (1750) 1 Ves Sen 437 at 442. For forms of will reviving a previous will which has been revoked see 23
The Encyclopaedia of Forms and Precedents (4th Edn) p 781 Form 11:1.
4 Hale v Tokelove (1850) 2 Rob Eccl 318 at 328; Newton v Newton (1861) 12 I Ch R 118; Rogers and Andrews v
Goodenough and Rogers (1862) 2 Sw & Tr 342 at 350; Re Steele (1868) LR 1 P & D 575 at 576; Re Reade [1902] P 75;
Re Mulock [1933] IR 171 at 191.
[330.044]
Intention to revive
Where a will that has been revoked is re-executed1, the fact of re-execution shows that the testator
intends to revive it. Where it is revived by codicil, the intention to revive it must be satisfied; such
intention must appear on the face of the codicil, either by express words referring to the revoked will
and importing an intention to revive it, or by a disposition of the testator's property inconsistent with any
other intention, or by other expression showing, with reasonable certainty, the existence of the
intention2.
If a codicil refers by date to an existing will and expressly confirms it, that sufficiently shows an intention
to revive it, the word 'confirm' being an apt word and expressing the meaning and having the operation
of the word 'revive'. This is so even though the testator did not know at the time of execution of the
codicil that the existing will had been revoked by his marriage3. The intention of revival must, however,
appear from the contents of the codicil4, or otherwise be shown by that document5. The mere physical
annexation of a codicil to a revoked will is not sufficient to revive it6, nor is a mere reference by a recital
in the codicil to such a will by date7.
Page 37
1 See the Wills Act 1959 (Act 346) s 16(1). See also [330.043].
2 Re Steele (1868) LR 1 P & D 575 at 578.
3 Re Wan Kee Cheong (decd) [1975] 1 MLJ 150; affd [1975] 2 MLJ 152, FC , where the court held that it was immaterial
whether testator knew that the will had been revoked by his marriage. The words 'in all other respects I confirm my said
will' was clear indication of testator's intention to revive the said will.
4 Marsh v Marsh (1860) 1 Sw & Tr 528, commented on in Re Steele (1868) LR 1 P & D 575.
5 Re Harper (1849) 7 Notes of Cases 44; Re Terrible (1858) 1 Sw & Tr 140, where a will in favour of the wife was
revoked by testator's second marriage following her death, and was revived by a duly executed memorandum written on
the will, substituting the name of the second wife.
6 Marsh v Marsh (1860) 1 Sw & Tr 528.
7 Re Dennis [1891] P 326. A mere statement in a codicil to a revoked will is not, it seems, sufficient to revive the will. The
Wills Act 1959 (which is equivalent to the Wills Act 1837 (UK)) requires further indication of the testator's intention. See
also Goldie v Adam [1938] P 85.
Page 38
Revocation/ (C) Publication
(C) Publication
[330.045]
Publication
Every will1 that is executed in the prescribed manner by the testator who has testamentary capacity is
valid without any other publication of the will2.
2 Wills Act 1959 (Act 346) s 7.

Page 39
Administration and Succession/(1) Wills/(2) Incidents and Failure of Gifts/ A. Introduction
(2) INCIDENTS AND FAILURE OF GIFTS

A. INTRODUCTION
[330.046]
Examples of interests which may be disposed of by a will
The power of disposition by will is not at the testator's caprice, but extends only to the creation or
disposition of those interests that are recognised by law and to no other1. The interest created need not
necessarily be the absolute interest of a sole donee vesting immediately in the whole of the property which
is the subject of the gift; immovable property may be given to persons as co-proprietors in terms of
undivided shares2 and movables may be given to persons as joint tenants or as tenants in common or as
a class3, and contingent, executory, future and successive interest may be created. A condition may be
attached to the gift4 or the interest may take the form of an option, exercisable only on the giving of
consideration5. The donee may be given the right to choose between two or more pieces of property6.
Rights to registrable interests in land may be given, such a right to a tenancy and lease, and right, interest
and title to immovable property under a sale and purchase agreement may also be given7. Rents8 and
corporeal hereditaments (physical objects, for example, fixtures and fittings, land and buildings) may be
given9. Those rights of action or interest that come to an end with the life of the owner, cannot be
disposed of by a will.
1 Soulle Gerrard (1596) Cro Eliz 525; Re Elliot, Kelly v Elliot [1896] 2 Ch 353 at 356. As to property disposable by will see
[330.013] and following.
2 Under the National Land Code (Act 56 of 1965) ss 344 or 346, land or a share or interest therein may be held by two or
more persons as joint tenants in their capacity as trustees or representatives only; whereas land may be held by two or more
persons as co-proprietors in terms of undivided shares: see s 342.
3 See [330.156] and following. As to the rules of convenience for ascertaining a class see [330.158] and following. See also
Wong Kai Woon v Wong Kong Hom [1991] 2 MLJ 469, [1991] SLR 353.
5 See [330.052].
6 Asten v Asten [1894] 3 Ch 260 at 262 per Romer J . For an example of a right to select land of a certain value see also
Earl of Bandon v Moreland [1910] 1 IR 220. See also Arthur v Mackinnon (1879) 11 Ch D 385 (where Jessel MR said that,
following the words literally, the donee may take the whole with the exception of one article of probably no value, when the
maxim de minimis would apply).
7 See Toh Huat Khay v Lim A Chang (in his capacity as the executor of the estate of Toh Hoy Khay, decd) [2010] 4 MLJ
312, FC .
8 The rent reserved by a lease, which may, it seems, be devised apart from the reversion.
9 In order to create registered interests under the National Land Code, the statutory mode prescribed in the provisions of the
Code must be followed: see s 205. Accordingly it is not possible to give a registered interest in land by will. See generally
LAND (2009 Reissue) [250.215] and following.
[330.047]
Failure of interests
Page 40
A gift may fail for reasons personal to the donee; if for example, he does not live to benefit by the gift, then
the gift lapses1. Further, the donee may disclaim the gift2. The gift may also fail, for example, by reason of
the paramount claims of creditors or the personal representatives, who may require the subject matter of
the gift for payment of debts and liabilities or testamentary and administration expenses having priority3.
Again, the property given by the testator may already be subject to encumbrances or charged with the
payment of money and be liable for the payment of the charge4; or the property may not be the property of
the testator, but of some other person5. Where the property given is no longer within the testator's power
of disposal at the date of his death, the gift is adeemed6. Subject to this doctrine of ademption, no transfer
conveyance assignment or other subsequent act of the testator relating to any property comprised in the
will, except an act revoking the will, prevents the will from operating with respect to the estate or interest in
property of which the testator has the power of disposing by will at the time of his death7.
A gift may also fail by reason of the non-performance of a condition precedent8, or by reason of the
disqualification of the donee for benefiting either by reason of his crime or fraud, or because he or his
spouse was an attesting witness9, or by reason of its being uncertain10, or infringing the rule against
perpetuities11, or being contrary to public policy12. A gift for purposes partly but not exclusively charitable,
may be prima facie void, for example for uncertainty or perpetuity. A gift for non-charitable purposes that
cannot be enforced by individuals is void13.
Acts of the testator prior to the date of the will may cause a gift to fail in the sense that the gift takes effect
not as a gift but in entire or partial satisfaction of a liability undertaken by the testator prior to and existing
at the date of the will. In certain cases, a presumption arises as to the satisfaction, wholly or partially, by
gifts in a will, of portions already covenanted to be paid, or of debts already owing to creditors at the date
of the will, in which cases, unless the presumption is displaced by evidence or the context of the will, the
portioner or creditor is bound to elect.
1 Wills Act 1959 (Act 346) s 19. As to lapse see [330.062]. The legal effect of s 19 is that a lapsed gift must be included in
and form part of the residuary devise or bequest, if any, contained in the will: Tay Seck Loong @ Tay Seck Long v Teh Chor
Chen [2005] 7 MLJ 612.
2 See [330.060].
3 See [330.005], [330.006]. According to the course of administration, a gift may be subject to abatement or ademption; for
order of application of assets see the Probate and Administration Act 1959 (Act 97) ss 68, 69(3), Sch 1 Pt II. See further
[330.489], [330.511].
4 See the Civil Law Act 1956 (Act 67) s 22; and the Probate and Administration Act 1959 s 70 (see [330.530]).
5 In such case the true owner may sometimes be compelled under the doctrine of election to elect between taking a benefit
under the testator's will and insisting on his own title to the property in question.
6 See [330.061]. See also Moor v Raisbeck (1841) 12 Sim 123 at 138; Blake v Blake (1880) 15 Ch D 481; Re Viscount
Galway's Will Trusts, Lowther v Viscount Galway [1950] Ch 1, [1949] 2 All ER 419.
8 See [330.054]. As to illegality of conditions see [330.053].
9 See [330.019].
10 See [330.122].
11 See [330.050].
12 See [330.056].
13 Re Astor's Settlement Trusts, Astor v Scholfield [1952] Ch 534, [1952] 1 All ER 1067.
Page 41
Administration and Succession/(1) Wills/(2) Incidents and Failure of Gifts/ B. Interests which may be Created
B. INTERESTS WHICH MAY BE CREATED
[330.048]
Successive and future interests
Successive and future interests in immovable property can be created as equitable interests through the
interposition of trustees1. Estates pur autre vie (that is, interest during the life of another) may be created
by a will2.
A chattel personal may be bequeathed for successive and future interests both at law and, through the
interposition of trustees in equity, so as to confer enforceable rights on the second and subsequent
holders3. Where the property in the chattels is not vested in trustees, the precise nature of the interest
taken by successive holders has not been finally determined. It seems that the tenant for life in possession
is a quasi-trustee for the remaindermen, or it may be that he holds the chattel under an implied contract as
bailee for the benefit of the remaindermen4. Whatever the true theory is, it is clear that the court of equity
will at the instance of remaindermen restrain by injunction an attempted disposition by the holder in breach
of the terms of the will5.
To be valid, successive and future interests in property must of course comply with the rule against
perpetuities6, and must not offend against any rule of public policy7.
1 Even though the National Land Code (Act 56 of 1965) does not provide for registration or entry of equitable estate, rights
and interests in land as such, s 344 provides for registration of land, shares or interests therein in favour of any person or
body 'as trustee'. The beneficiary under a trust may protect his interest in land by entering a private caveat and a trust
caveat may be entered upon application under s 333: see LAND (2009 Reissue) [250.237], [250.238]. It is important to note
that although the Civil Law Act 1956 (Act 67) s 6 precludes the application of English Law relating to the tenure or
conveyance or assurance of or succession to any immovable property or any estate right or interest therein, s 6 does not,
nor was it even intended to exclude application of English equitable principles per se. The Malaysian courts have often
recognised and enforced equitable or beneficial estate rights and interests and invoked the English rules of equity and trust
provided that such application does not conflict with the provisions of the National Land Code or override or affect any right
or interest conferred by the provisions of the National Land Code or other existing laws in Malaysia. See generally [250]
LAND (2009 Reissue). See also Toh Huat Khay v Lim A Chang (in his capacity as the executor of the estate of Toh Hoy
Khay, decd) [2010] 4 MLJ 312, FC .
2 An interest may be created by will where the cestui que vie or one or more of the cestuis que vie are unborn, provided that
they are ascertained within the limits allowed by the rules against perpetuities: see Re Amos, Carrier v Price [1891] 3 Ch
159 at 166-167 (estate for the life of the donee and the life of his heir).
3 Hoare v Parker (1788) 2 Term Rep 376 (trover); Re Swan, Witham v Swan [1915] 1 Ch 829.
4 Re Swan, Witham v Swan [1915] 1 Ch 829 at 834-835.
5 Re Swan, Witham v Swan [1915] 1 Ch 829 at 835.
6 See [330.050].
7 Where the duration of a limited gift is fixed by reference to an event contrary to public policy, such as the future separation
of husband and wife (Re Moore, Trafford v Maconochie (1888) 39 Ch D 116, CA (Eng) ) or an attempt to fetter the duty of
parents to provide for children's education (Re Blake, Lynch v Lombard [1915] IR 89), the gift is void. If the words are not
part of the limitation, but impose a condition, it may be possible to reject them, leaving the gift absolute: Re Moore, Trafford v
Maconochie (1888) 39 Ch D 116, CA (Eng) ; and see Re Lovell, Sparks v Southall [1920] 1 Ch 122. As to conditions see
[330.053].
Page 42
[330.049]
Vesting of interests
Vesting of interests created by will may be immediately upon the death of testator or may be postponed to
a later date1. The rules and presumption in favour of early vesting only apply and arise in doubtful cases
where the testator has not fully and unambiguously expressed his intention2. The postponement of vesting
or distribution must not infringe the rule against perpetuities3.
1 Re E J Nathan (decd) [1963] MLJ 4 (bequest of residuary estate to his children in certain shares did not vest immediately
but was retained by the trustee to pay income to the children for a period of 16 years from date of testator's death); Chia
Khwee Eng v Chia Poh Choon [1923] AC 424, PC , upon expiration of 12 years from testator's death (corpus of trust fund to
be divided equally between wife and children). See also Re Ong Lai (decd), Ong Thian Ee v Tan Tian Tee [1948-1949] Supp
MLJ 1.
2 Yau Yok Seng v Yau Yok Fook [1923] 4 FMSLR 151, CA when it is clear from a will read as a whole that the intention was
that there should be no vesting or distribution until 21 years after the death, the court will postpone the vesting
notwithstanding that it favours early vesting and may consider the will to be unwise; cf Gabriel Togonu Bickersteth v Evan
Adeleye Shanu [1936] MLJ 97, PC (after making various devises of real estate in favour of the testator's son, the will
provided that these devises 'shall take effect' upon any said son attaining the age of 25 years. The court held that the true
construction of the words 'shall take effect' related to the devises taking effect in possession and were not intended to
impose a condition precedent on such devises; the devises therefore vested at the date of the testator's death and subject to
divestment if the son should fail to attain the age of 25). The established rule for the guidance of the courts in construing
devises of real estate is that they are to be held to be vested unless a condition precedent to the vesting is expressed with
reasonable clearness. In cases of doubt as to the nature of the condition, the presumption is in favour of treating the
condition as subsequent. See also Woon Hong Chin v Chin Choo Lian [1930] SSLR 3 (where the gift vested immediately on
testator's death even though there was a direction in the will that legacy be paid to unmarried daughters three years after
their marriage). See also Re Noormohamed Virjibah Velmohamed (decd), Sakker Khanu Noormohamed Merchant v Malek
Sultan Calcuttawala [1958] MLJ 217 (legacy to daughter upon attaining age of 45, court held legacy vested on death of
testator since legatees were entitled to the whole income of legacy from the date of testator's death); Re Ong Tiang Soon
(decd); Tan Swee Neo v Ong Yan Ho Neo [1955] MLJ 19; Lee Hiok Tng v Ng Yuk Wah [1988] 3 MLJ 197, [1988] SLR 630
(where the courts ruled in favour of early vesting).
3 Re Cheang Keng Quee (decd), Chung Kok Sang v Chung Kok Sang [1938] MLJ 163, the testator's direction that the trust
fund must not be distributed until the youngest of the grandsons had attained 21 years of age or married under that age was
held to be inoperative; Re Hadjee Haroun bin Tamby Kechik (decd) [1949] MLJ 143 (where the gift over after the deaths of
the widow, children and grandchildren offends the rule against perpetuity). As to the rule against perpetuities see [330.050].
[330.050]
The rule against perpetuities
The rule against remoteness of vesting is generally known as the rule against perpetuities1. The rule may
be shortly enunciated as follows. Every future estate or interest in any kind of property, to be valid, must
vest, if at all, within the perpetuity period. This period is the life of a person or the survivor of any number
of persons in being2, and 21 years to be computed from the dropping of the life. However, if no such
person or persons are ascertained by the instrument, the period is 21 years computed from the time of
creation of the future estate or interest and ascertained for that purpose by the instrument creating the
same3. A provision in a will settling property on such trusts that it may vest outside the perpetuity period is
void. It is not sufficient that it may vest within that period.
It must be good in its creation, and, unless it is created in such terms that it cannot vest after the expiration
of a life or lives in being and 21 years and the period allowed for gestation, it is not valid, and subsequent
events cannot make it valid4.
Every condition subsequent that, but for the rule above, would render void a validly created estate or
interest is to that extent inoperative.
Page 43
1 The rule or principle forbidding a perpetuity was a principle of common law. For the origin and history of the rule against
perpetuities in English Law see 35 Halsbury's Laws of England (4th Edn) para 902, note 4, para 905 note 2. The modern
rule against perpetuities arose from the limit fixed for executory devises and bequests and proceeds on the basis that the
validity of an interest depends on the distance in futurity of its vesting: Duke of Norfolk's Case (1683) 3 Cas in Ch 1. Some
learned writers are of the opinion that the earliest meaning of 'perpetuity' was an inalienable estate, particularly an estate tail
intended to be unbarrable: see Jarman on Wills (8th Edn) p 291. By virtue of the Civil Law Act 1956 (Act 67) s 3(1), the rule
against perpetuities, being part of the common law of England as administered in England as at 7 April 1956, is likewise
applicable in West Malaysia: see Yeap Cheah Neo v Ong Cheng Neo [1875] LR 6 PC 381; Choa Choon Neo v
Spottiswoode (1896) 1 Ky 216; Phan Kin Thin v Phan Kuon Yung [1940] MLJ 44. See also Ng Eng Kiat v Goh Lai Mui [1940]
MLJ 181; Re Lee Moey Chye (decd) [1966] 1 MLJ 131, where the court held that the rule is recognised law but the rule
against perpetuities did not apply as the trust was impressed upon property situated in a foreign country, namely, China; Re
Chin Sem Lin's Settlement, Yong Tet Foong v Chin Thin Lee [1971] 2 MLJ 152.
2 The choice of persons whose lives are chosen for the purposes of the perpetuity period may be quite arbitrary. It is not
material that those persons take no interest in the property or are not connected with the persons having an interest in it in
any way. There is no limit to their number, provided that evidence will be available to determine when the survivor of the
lives drops. In a will, the persons must be such as must necessarily be in being at the testator's death. The perpetuity period
is 21 years in cases where no life is indicated for the purpose, or where every life indicated has predeceased the testator.
For the purpose of the rule, a child who is en ventre sa m re at the time of creation of an estate or interest and is afterwards
born alive is considered as a life in being for the purposes both of the vesting of the estate or interest in him (see Elliot v
Lord Joicey [1935] AC 209 at 225, HL ), and of being a life chosen to form the perpetuity period (see Re Wilmer's Trusts,
Moore v Wingfield [1903] 2 Ch 411 at 422-423, CA (Eng) ).
3 The time of creation of estate or interest by or under the will is the time of the testator's death. Thus, for a limitation in a
will, the period runs from the testator's death.
4 Lord Dungannon v Smith (1846) 12 Cl & Fin 546 at 563, HL, per Cresswell J ; Hancock v Watson [1902] AC 14 at 17-18,
HL, per Lord Davey . Discretionary trusts must be so limited that the discretion is not exercisable outside the perpetuity
period. As to discretionary trusts see generally TRUSTS (2015 Reissue) [310.078] and [310.118].
[330.051]
Limits of period of accumulation
A provision in a will that directs accumulation of income outside the time for accumulation allowed by law
is void. Trusts for accumulation and dispositions directly or indirectly causing accumulation, wholly or
partially, of income of any property must, in addition to complying with the rule against perpetuities, be
confined (with certain statutory exceptions1) to one or other of certain alternative statutory periods2, any
one of which, but not more than one, may be chosen. The restrictions apply to powers to accumulate as
well as to imperative trusts for accumulation whether express or implied. These statutory periods are:
(1) the life of the grantor or settlor;

(2) a term of 18 years from the death of the grantor, or settlor3;
(3) the duration of the minority or respective minorities of any person or persons living or en
ventre sa m re at the death of the grantor or settlor; or
(4) the duration of the minority or respective minorities only of any person or persons who under
the limitations of the instrument directing the accumulations would, for the time being, if of
full age, be entitled to income directed to be accumulated.
Insofar as an accumulation is directed4 for any period longer than the statutory period, the direction is
void; and the income directed to be accumulated must, so long as the same is directed to be accumulated
in excess of the appropriate statutory period, go to the person or persons who would have been entitled
thereto if the accumulation had not been directed5.
Where accumulations of surplus income are made during a minority under any statutory power or under
the general law, the period for which such accumulations are made is not to be taken into account in
determining the statutory periods for which accumulations are permitted to be made, and accordingly an
express trust for accumulation for any other permitted period will not be deemed to have been invalidated
Page 44
or become invalid, by reason of accumulation also having been made as aforesaid during the minority6.
In the case of a settlement or disposition where the purpose of accumulation is the purchase of land only,
the period for accumulation allowed is the duration of the minority or respective minorities of any person or
persons who, under the limitations of the instrument directing the accumulation, would for the time being, if
of the age of majority, be entitled to receive the income directed to be accumulated7.
1 For statutory exceptions to the general restrictions on accumulations see the Civil Law Act 1956 (Act 67) s 17(3), where
accumulation is for payment of debts of any grantor, settlor or other person; or for raising portions for any child, children or
remoter issue of grantor or settlor; or any child, children or remoter issue of a person taking any interest under the will
directing the accumulations or to whom any interest is thereby limited.
2 See the Civil Law Act 1956 s 17(1). The four periods are alternative not cumulative. The question as to which period has
been chosen in each particular case is one of construction of each instrument. Independently of express reference to other
periods, the period of 18 years from the death of the testator will prima facie be the appropriate period in the case of a trust
under a will. Where accumulation is directed in a will, and no period of accumulation is specified, the accumulation will apply
during the 18 years after the testator's death (see Griffiths v Vere (1803) 9 Ves 127; Oddie v Brown (1859) 4 De G & J 179:
where accumulation was applied during the 21 years after the testator's death as prescribed by the Law of Property Act
1925 (UK) s 164), and where the accumulation is directed to begin at a later date, the permitted period will expire at the end
of the 18th anniversary of the testator's death (see Evans v Hellier (1837) 5 Cl & Fin 114: where the permitted period expired
at the end of the 21st anniversary of the testator's death, as laid down by the Law of Property Act 1925 (UK)).
3 In the case of a trust or disposition under or by will, the grantor or settlor means the testator.
4 Accumulation within the meaning of the statutory provisions is directed by any expression denoting that the whole or part
of the income of property is to be separated from the ownership of that property, so as either to form, or to be an accretion
to, the capital of any fund; or as to be a postponement of, and restriction on, the beneficial enjoyment of the property.
5 See the Civil Law Act 1956 s 17(2).
6 See the Civil Law Act 1956 s 18.
7 See the Civil Law Act 1956 s 19. The age of majority of every male and female is attained at the age of 18: see the Age of
Majority Act 1971 (Act 21) s 2.
[330.052]
Options to purchase
A person may be given the right to purchase property forming part of the testator's estate either at a price
fixed by the testator1 or by some person or persons nominated by him, such as trustees2, or at a
valuation3. Whether or not the right to purchase is personal to the donee or is transmissible depends in
each case on the construction of the will4. While there may be in an option an element of bounty5, the
exercise of the option creates the relationship of vendor and purchaser between the testator's estate and
the donee so as to give the donee the right to have the property free from incumbrances6.
The donee of an option to purchase must as a rule strictly comply with any terms of the option, for
example, as to the time of signifying his exercise of the option7, or as to the time of payment8.
1 Earl of Radnor v Shafto (1805) 11 Ves 448 at 545; Re Eve, National Provincial Bank Ltd v Eve [1956] Ch 479 [1956] 2 All
ER 321. Cf Re Hammersley, Foster v Hammersley [1965] Ch 481, [1965] 2 All ER 24, where the gift of an option was
exercisable on the death of the testator's wife, as she predeceased him the option was not exercisable. For forms of grant of
an option to purchase see 23 The Encyclopaedia of Forms and Precedent (4th Edn) pp 893-894 Forms 18:F:1 (option to
purchase land), p 980 Form 22:E:1 (option to purchase testator's business).
2 See Earl of Radnor v Shafto (1805) 11 Ves 448; Edmonds v Millett (1855) 20 Beav 54. As to directions for taking the price
into account on distribution see Re Dallmeyer, Dallmeyer v Dallmeyer [1896] 1 Ch 372, CA (Eng) .
3 Re Dowse, Dowse v Dowse [1951] 1 All ER 558n; Talbot v Talbot [1968] Ch 1, [1967] 2 All ER 920, CA (Eng) ('at a
reasonable valuation'; sufficiently certain).
Page 45
4 Skelton v Younghouse [1942] AC 571, [1942] 1 All ER 650, HL . See also Re Zerny's Will Trusts, Symons v Zerny [1968]
Ch 415, [1968] 1 All ER 686, CA (Eng) .
5 Re Fison's Will Trusts, Fison v Fison [1950] Ch 394, [1950] 1 All ER 501. The beneficial interest represented by the
difference between option price and market value was held in Re Eve, National Provincial Bank Ltd v Eve [1956] Ch 479,
[1956] 2 All ER 321 not to be a property specifically bequeathed.
6 Re Wilson, Wilson v Wilson [1908] 1 Ch 839; Re Fison's Will Trusts, Fison v Fison [1950] Ch 394, [1950] 1 All ER 501 (an
option to purchase shares may be exercisable in respect of other shares into which they have been converted).
7 Where an offer has to be made by the trustees, or the price has to be fixed, time may run only from communication of the
terms to the donee: Lord Lilford v Keck (1862) 30 Beav 295; Austin v Tawney (1867) 2 Ch App 143. If time is directed to run
from an event actually happening in testator's lifetime, but assumed by the testator to happen after his death, the direction
may be construed so that time will run from his death: Evans v Stratford (1864) 2 Hem & M 142. If no time is fixed, the
donee is allowed a reasonable time: Huckstep v Mathews (1685) 1 Vern 362.
8 Brooke v Garrod (1857) 2 De G & J 62. In this case there was a gift over on non-payment within the time; the mere
signification of acceptance was not sufficient to comply with the will.
Page 46
Administration and Succession/(1) Wills/(2) Incidents and Failure of Gifts/ C. Conditions Attached to Gifts
C. CONDITIONS ATTACHED TO GIFTS
[330.053]
General rules as to conditions
A gift may be made as a conditional gift or limitations subject to the rules restricting such conditions and
gifts.
By his will1 a testator may freely attach conditions to his gifts2, provided that they do not conflict with
certain recognised restrictions and are not inconsistent with other provisions of the will.
A condition must not be unlawful3; it must not be contrary to public policy4; it must not be uncertain5; it
must not be such that the court declines to investigate whether it has been or will be complied with6; and it
must not be in such terms that the event causing forfeiture may not occur until a date beyond the limits of
the rule against perpetuities7. A condition amounting to a trust is subject to the restriction that the object
for whose benefit the trust is imposed must be capable of taking8, but there does not appear to be any like
restriction where the condition does not amount to a trust, but binds the donee to do acts which may
benefit an object incapable of taking9.
A condition is void when it is repugnant to the interest given to the donee, or is repugnant to other gifts in
the will, or is otherwise inconsistent with other provisions of the will10. It must also be possible for the
condition to be complied with11.
Where the condition is in itself valid, the donee may nevertheless in some circumstances be excused from
performing it12.
1 A condition will fail if it is in a document that cannot be admitted in evidence as part of the will: see Re Williams, Taylor v
University of Wales (1908) 24 TLR 716; and see also [330.077]. As to conditions undertaken by the donee by agreement
with the testator see [330.089].
2 As to the construction of conditions generally see [330.219]. For forms of gifts of residue subject to a condition see 23 The
Encyclopaedia of Forms and Precedents (4th Edn) pp 1039-1040 Forms 23:G:12. A condition may in effect create a trust:
see Re Frame, Edwards v Taylor [1939] Ch 700, [1939] 2 All ER 865.
3 As to what constitutes an unlawful object see the Contracts Act 1950 (Act 136) s 24 which provides that an object of an
agreement is unlawful if: (1) it is forbidden by a law; (2) it is of such a nature that, if permitted, it would defeat any law; (3) it
is fraudulent; (4) it involves or implies injury to the person or property of another; (5) the court regards it as immoral, or
opposed to public policy. A condition which in effect delegates to another, a testator's testamentary power is void: Re
Neave, Neave v Neave [1938] Ch 793, [1938] 3 All ER 220. See generally [120] CONTRACT (2013 Reissue).
4 See [330.056], [330.057].
5 See [330.058].
6 W v B (1849) 11 Beav 621 (condition relating to cohabitation).
7 Re Spitzel's Will Trusts, Spitzel v Spitzel [1939] 2 All ER 266. For the statutory rule against perpetuities see the Civil Law
Act 1956 (Act 67) ss 17, 18, and 19; and [330.050].
8 See [330.017].
9 See Lloyd v Lloyd (1852) 2 Sim NS 255 (repair of a tomb).
10 See Re Rosher, Rosher v Rosher (1884) 26 Ch D 801; Re Cockerill, Mackaness v Percival [1929] 2 Ch 131; Re Fry
[1945] Ch 348, [1945] 2 All ER 205. See also [330.110].
Page 47
11 Re Turton, Whittington v Turton [1926] Ch 96, where impossibility is due to the acts of the testator. See also Re Moore,
Trafford v Maconochie (1888) 39 Ch D 116, CA (Eng) . See also Re Lee Moey Chye (decd) [1966] 1 MLJ 131 (trust for the
remittance of moneys and proceeds of sale to China in order to form ancestral property was held to have failed as it was
impracticable of performance).
12 See Wedgwood v Denton (1871) LR 12 Eq 290 at 296 (where by reason of acts of testator or other events, subsequent
to the date of the will, a condition imposed is substantially performed or is nullified in the testator's lifetime, the donee will not
be bound by it).
[330.054]
Conditions precedent and subsequent
According to the construction of the words in the will, words expressing a condition may either be a
condition precedent, that is to say, there is no gift intended at all until and unless the condition is fulfilled1,
or a condition subsequent, that is to say, non-compliance with the condition is intended to put an end to
the gift2. However, where the wording in the will is not clear, it is a settled rule of construction that words
are not construed as importing a condition (particularly a condition of forfeiture) if they are fairly capable of
another interpretation3.
Subject to the terms of the will, the date at which a condition precedent must be fulfilled is the date at
which the interest, if any, vests in possession4. Where it is doubtful whether a condition is precedent or
subsequent, the court prima facie treats it as subsequent, for there is a presumption in favour of early
vesting5.
Words that import a condition may also be construed as merely creating a trust or charge, or even simply
a personal obligation6.
1 Wood v Duke of Southampton (1692) Show Parl Cas 83, HL ; Wood v Webb (1695) Show Parl Cas 87; Harvy v Aston
(1740) Com 726 at 744; Reynish v Martin (1746) 3 Atk 330 at 332; Egerton v Earl Brownlow (1853) 4 HL Cas 1 at 74.
2 See Re Boulter, Capital and Counties Bank v Boulter [1922] 1 Ch 75; Sifton v Sifton [1938] AC 656, [1938] 3 All ER 435,
PC .
3 Edgeworth v Edgeworth (1869) LR 4 HL 35 at 41 per Lord Westbury .
4 Re Allen, Faith v Allen [1954] Ch 259, [1954] 1 All ER 526. Cf Shanti Rupchand Binwani alias Shanti v Udharam Dayaram
Binwani [1951] MJ 31, where the court held the legacy was vested as it has been separated from the rest of the estate but
the legatee is not entitled to payment upon becoming sui juris, where some other condition upon which the payment is
condition has not been fulfilled, as in that case the marriage has not taken place.
5 It applies only where the matter is not clear. See Hickling v Fair [1899] AC 15, HL ; Gabriel Togonu Bickersteth v Evan
Adeleye Shanu [1936] MLJ 97, PC ; Sifton v Sifton [1938] AC 656, [1938] 3 All ER 435, PC .
6 In Re Frame, Edwards v Taylor [1939] Ch 700, [1939] 2 All ER 865 (where it was held that a gift upon condition that the
donee adopted the testator's daughter involved that the donee should receive the property on trust to provide maintenance,
and this was a trust which would be enforced). Cf Hsu Yik Chai v Hsu Yaw Tang [1982] 2 MLJ 227, FC , where the testator
gave to his brothers and his wife (widow) a piece of land 'to take rightful possession so as to assist them towards the
expenses of bringing up and educating my children until they became matured'. As the widow had not fulfilled the condition
and the brothers having brought up the testator's children, had accepted and fulfilled the condition imposed by the will, the
brothers were therefore entitled to keep the land that was transferred to them.
[330.055]
Effect of invalidity in general
When a condition is void as illegal1, contrary to public policy2, repugnant to a prior gift or to the interest
Page 48
given to the donee or inconsistent with other provisions of the will, impossible to perform or uncertain3, the
effect on the gift depends on whether it is of realty or personalty, and whether the condition is precedent or
subsequent4. If the gift is of realty, and the condition is precedent, the gift as well as the condition fails to
take effect5, and this is so even if there is no gift over as the doctrine as to conditions in terrorem does not
apply to devises of realty. If the gift is of personalty and the condition is precedent, then if it is originally
impossible, or is made so by the testator's act or default, the bequest is good, but if the performance of the
condition is the sole motive of the bequest, or its impossibility was unknown to the testator, or the
condition which was possible in its creation has since become impossible by an act of God, the bequest
fails6. A gift of personalty takes effect free from a condition precedent that is voidable and is avoided by
the donee, or is repugnant to the gift, or fails to operate on the gift as being in terrorem. A gift subject to a
void condition subsequent takes effect free from the condition7.
1 See [330.053].
2 See [330.056].
3 See [330.058].
4 See [330.053].
5 Egerton v Earl Brownlow (1853) 4 HL Cas 1; Re Turton, Whittington v Turton [1926] Ch 96. See also Mustan Bee v Shaina
Tamby (1882) 1 Ky 580, where a devise of a shop which was not to be sold but its rents to go for repairs and balance
thereof for 'kandoories' (feasts) was held to be void as being in restraint of alienation.
6 See Re Moore, Trafford v Maconochie (1888) 39 Ch D 116 at 128-129, CA (Eng), per Cotton LJ .
7 Egerton v Earl Brownlow (1853) 4 HL Cas 1; Re Gassiot, Fladgate v Vintners' Co (1901) 70 LJ Ch 242; dicta in Jones v
Jones (1876) 1 QBD 279. See also Mahomed Ghouse v Hajee Mahomed Saiboo (1885) 4 Ky 101 (a gift of lands to children
with direction not to sell or mortgage was not void but the condition subsequent in restraint on alienation alone was void);
Khoo Seok Haing v Khoo Wee Team (1883) 1 Ky 633 (a gift of land controlled by restraint against alienation was not void
but the restraint alone was void); Kader Bee v Kader Mustan (1878) 1 Ky 432 (a gift of land was upheld but restraint against
alienation alone was void). Cf Re Arunasallam, Supama v Kalimuttu [1947] SCR 18, SC (Sarawak) (devise of land with
direction that it must not be sold at any time, but must be preserved as a heirloom was held void in that it infringed the rule
against perpetuities). See also Fatimah v Logan (1871) 1 Ky 255 (the condition subsequent in restraint of legal proceedings
in the form of direction by testator that any legatees or devisees 'proceeding to law in any court or courts for their said
shares' should lose their legacies was held to be void as it was repugnant and inconsistent with the gifts). In Leong v Lim
Beng Chye [1955] MLJ 153, [1955] AC 648, [1955] 2 All ER 903, PC , where the English rule was applied, a condition
subsequent in partial restraint of marriage when annexed to a bequest was ineffective to destroy the gift, unless the will in
question contained an explicit gift over of legacy to another legatee. See also Toh Huat Khay v Lim A Chang (in his capacity
as the executor of the estate of Toh Hoy Khay, decd) [2010] 4 MLJ 312, FC .
[330.056]
Public policy
A condition may be void, or void in part of its application, because it is against public policy1. Conditions
against public policy are those conditions as to which the State has or may have an interest that they
should remain unperformed or unfulfilled2.
1 Examples of conditions void as opposed to public policy are conditions inciting a donee to commit an unlawful act (Mitchel
v Reynolds (1711) 1 P Wms 181 at 189), or to use corruption (Egerton v Earl Brownlow (1853) 4 HL Cas 1 at 59, 99, 172);
or inciting a donee to exert private or political party influence in any matter or act of state (Egerton v Earl Brownlow (above)
at 59, 99, 172); or tending to produce a future separation of husband and wife (Re Caborne, Hodge and Nabarro v Smith
[1943] Ch 224, [1943] 2 All ER 7), or the separation of parent and child (Re Boulter, Capital and Counties Bank v Boulter
[1922] 1 Ch 75; Re Piper, Dodd v Piper [1946] 2 All ER 503; Re Morgan, Dowson v Davey (1910) 26 TLR 398; Re
Sandbrook, Noel v Sandbrook [1912] 2 Ch 471; Colston v Morris (1821) 6 Madd 89; McDonald v Trustees, Executors and
Agency Co Ltd (1902) 28 VLR 442); or unreasonably restraining marriage, trade or industry (Cooke v Turner (1846) 15 M &
W 727 at 736; Egerton v Earl Brownlow (above) at 18n; Jones v Bromley (1821) 6 Madd 137); or if it has a tendency towards
harm of the public interest (Egerton v Earl Brownlow (above); Re Wallace, Champion v Wallace [1920] 2 Ch 274, CA (Eng)
). It is not contrary to public policy for a testator to impose a condition requiring the legatee to be of a particular religious
Page 49
faith, and a condition against disputing the will, or disputing legitimacy, is not void on this ground unless there is no gift over.
2 Cooke v Turner (1846) 15 M & W 727 at 735-736. See also Evanturel v Evanturel (1874) LR 6 PC 1 at 29.
[330.057]
Restraint of marriage
A condition in general restraint of marriage can, in the nature of things, only be a condition subsequent,
but the words used may be capable of being treated as words of limitation1. If the condition is in general
restraint of marriage of the donee, other than a minor during his or her minority, it is void as being contrary
to public policy2.
A condition is a gift of realty in partial restraint of marriage is valid whether the condition is precedent or
subsequent and whether or not there is a gift over3. In the case of personalty such a condition is valid
where the restraint is in the circumstances reasonable4 and where there is a gift over so that the condition
is not merely in terrorem5. A condition in restraint of a second marriage is valid6. So is a condition against
marrying a particular person7, or a member of a particular class of persons8, or a person of a particular
religion9; or forbidding marriage under a specified and reasonable age10. Further, an interest may be
given conditionally on a donee marrying a particular person11 or one of a class of persons12. A condition
which is not, on the face of it, in general restraint of marriage, but which is a deterrent to marriage
because the person subject to it can never know whether he can safely marry anyone is unreasonable
and void13.
1 Page v Hayward (1705) 2 Salk 570; Pelham-Clinton v Duke of Newcastle [1903] AC 111, HL . Words are construed as a
limitation depending on marriage where an interest is given to endure so long as the donee remains unmarried, and,
generally, marriage may be made the ground of a gift ceasing or commencing.
2 See also the Contracts Act 1950 (Act 136) s 27. See generally CONTRACT (2013 Reissue) [120.438].
3 Haughton v Haughton (1824) 1 Mol 611.
4 Keily v Monck (1795) 3 Ridg Parl Rep 205 at 261; Young v Furse (1857) 8 De GM & G 756 at 759.
5 The doctrine of in terrorem is adopted by the courts of equity and applies to condition in partial restraint as opposed to
general restraint of marriage. See Leong v Lim Beng Chye [1955] MLJ 153 at 155, [1955] AC 648 at 661, [1955] 2 All ER
903 at 907, PC , a condition made in terrorem means that the condition is made as a mere idle threat to induce the donee to
comply with the condition, but not to affect the gift. Therefore a condition is not in terrorem if the testator shows an intention
that it is to be effective, as by making a different disposition of the subject matter of the gift in the event of non-compliance
with the condition, that is to say when there is a gift over. If the condition is subsequent, a gift over is essential to the validity
of the condition.
6 Such a restraint is apparently to be considered as partial only, albeit it is directed against any further marriage: Leong v
Lim Beng Chye [1955] AC 648, [1955] 2 All ER 903, PC . See also Chia Khwee Eng v Chia Poh Choons [1923] AC 424, PC
.
7 Re Hanlon, Heads v Hanlon [1933] Ch 254.
8 Perrin v Lyon (1807) 9 East 170 (Scotsman); Jenner v Turner (1880) 16 Ch D 188 (domestic servant).
9 Hodgson v Halford (1879) 11 Ch D 959 ('not a Jew'); Re Knox (1889) 23 LR Ir 542 ('not a Protestant').
10 Stackpole v Beaumont (1796) 3 Ves 89 at 97 (age of 21).
11 Davis v Angel (1862) 4 De GF & J 524.
12 See Hodgson v Halford (1879) 11 Ch D 959.
13 Re Lanyon, Lanyon v Lanyon [1927] 2 Ch 264 (condition against marrying 'relation by blood').
Page 50
[330.058]
Uncertainty
Unless the court can put a clear meaning upon a condition, it is unenforceable and, therefore, in effect,
void1. The question of uncertainty arises where it is alleged that a condition subsequent will defeat a
vested estate or where it is alleged that the gift cannot vest because the intended beneficiary is not able to
show that the stated requirements are fulfilled and that a condition precedent is satisfied at the relevant
date.
In the case of a condition subsequent, to be valid the condition must then be such that the court can see
from the beginning precisely and distinctly on the happening of what event it was that the preceding
vested estate was to determine. In the case of a condition precedent, all that the donee must do is to
establish, if he can, at the relevant date, that he satisfied the condition2.
There is a clear distinction, however, between uncertainty of expression3 and uncertainty in operation. It is
the duty of the court to endeavour to resolve uncertainty of expression by construing the will in the light of
the rules of construction4, while bearing in mind that the law favours vested estates. If, when the will is so
construed, a meaning cannot be properly ascribed to the language used by the testator, it fails for
uncertainty5. If, however, a proper meaning can be given to the language, the next step is to consider
whether the condition is too uncertain in operation to satisfy the test of validity previously stated.
Requirements that the donee is not to be educated abroad6 or is to retire to a convent7 or is not to
associate with certain persons8, or is not to be under the control of his father9 or is not to carry on a
profession10, or is to farm the land devised11 have been held uncertain12.
A provision that a donee should lose his interest in a certain estate if he became entitled to certain other
property was valid13.
1 Fillingham v Bromley (1823) Turn & R 530. See also the Contracts Act 1950 (Act 136) s 30. See generally CONTRACT
(2013 Reissue) [120.082].
2 For examples of uncertainty in relation to a condition precedent or qualification see Re Tarnpolsk, Barclays Bank Ltd v
Hyer [1958] 3 All ER 479, [1958] 1 WLR 1157 (marriage to person of 'Jewish race'); Blathwayt v Baron Cawley [1976] AC
397, [1975] 3 All ER 625, HL ('be a Roman Catholic'). The English courts have held that conditions relating to race are void
as the whole concept of race is not sufficiently certain, whereas conditions as to religion can be held to be certain and valid:
see also Re Wright, Public Trustee v Wright (1937) 158 LT 368 ('have become or become a Roman Catholic or marry or
shall have married a Roman Catholic': valid but confined to testatrix's lifetime). Cf Trustees of Church Property of the
Diocese of Newcastle v Ebbeck (1961) ALR 339, where there was a gift after a life estate to the testator's sons and their
wives 'if they profess the Protestant faith'; this was not void for uncertainty, but void as against public policy as tending to
give rise to discord between husband and wife. Cf Re Chionh Ke Hu (decd) [1964] MLJ 270, where a gift of 30 shares of
residuary estate to be distributed among such persons professing or practising the Buddhist religion was held to be invalid
as there was uncertainty with reference to the objects.
3 'Uncertainty of expression' is now often called 'conceptual uncertainty': see eg Re Baden's Deed Trusts (No 2) [1973] Ch 9
at 20, [1972] 2 All ER 1304 at 1309, CA (Eng) .
4 As to rules of construction see [330.091].
5 An example of uncertainty in meaning is when the condition relates to residence; where the testator uses simple words like
'occupy' or 'reside', the condition is uncertain, and where the testator postulates more complex requirements, such as
residence for a fixed period or personal presence, in which case the condition may be sufficiently certain.
6 Clavering v Ellison (1859) 7 HL Cas 707.
7 Duddy v Gresham (1878) 2 LR Ir 442.
8 Jeffreys v Jeffreys (1901) 84 LT 417; Re Jones, Midland Bank Executor and Trustee Co Ltd v Jones [1953] Ch 125,
[1953]1 All ER 357.
9 Re Sandbrook, Noel v Sandbrook [1912] 2 Ch 471.

Page 51
10 Re Reich, Public Trustee v Guthrie (1924) 40 TLR 398.
11 Re Hennessy (Richard B) (1963) 98 ILTR 39.
12 In Re Burke [1951] 1 IR 216, a condition that the donee should not leave Ireland failed to operate because he had
already done so at the testator's death.
13 Bromley v Tyron [1952] AC 265, [1951] 2 All ER 1058, HL .

Page 52
Administration and Succession/(1) Wills/(2) Incidents and Failure of Gifts/ D. Acceptance and Disclaimer
D. ACCEPTANCE AND DISCLAIMER
[330.059]
Acceptance
If the donee of a gift by will accepts the gift, he takes it with all the benefits and burdens which are incident
to it by law, or which are validly attached to it by the testator, and in particular with the burden of all the
conditions and obligations validly attached to it which are intended to be binding on him1. It is a question
of construction in each case whether the words of condition create only a trust or charge on the property
or whether a personal obligation2 is created. Further, it is also a question of construction in each case
whether an interest in property that at the time of death of the testator is charged with payment of money
is primarily liable for the payment of the charge3.
In general, and subject to the terms of the will4, the donee need not expressly accept the gift and
acceptance may be made by or inferred from informal acts of conduct, especially if they amount to acts of
ownership. The donee's acceptance of the gift is generally presumed and the gift vests in him until and
unless he disclaims5.
Once a gift is unequivocally accepted6, it cannot as a rule subsequently be repudiated7 to the prejudice of
others.
1 Pitman v Crum Ewing [1911] AC 217, HL ; Messenger v Andrews (1828) 4 Russ 478; Hickling v Boyer (1851) 3 Mac & G
635; Barker v Barker (1870) LR 10 Eq 438.
2 Rees v Engelback (1871) LR 12 Eq 225; Re M'Mahon, M'Mahon v M'Mahon [1901] 1 IR 489, CA (Ir) ; Re Loom, Fulford v
Reversionary Interest Society Ltd [1910] 2 Ch 230; Duffy v Duffy [1920] 1 IR 122, CA (Ir) ; Re Hodge, Hodge v Griffiths
[1940] Ch 260; Re Lester, Lester v Lester [1942] Ch 324, [1942] 1 All ER 646.
3 See the Probate and Administration Act 1959 (Act 97) s 70 and the Civil Law Act 1956 (Act 67) s 22.
4 The will may require a written acceptance: Evans v Stratford (1864) 2 Hem & M 142.
5 Townson v Tickell (1819) 3 B & Ald 31 at 36-37; Re Arbib and Class's Contract [1891] 1 Ch 601, CA (Eng) . Acceptance is
thus presumed for the purpose of the property vesting in the donee, even if he had no knowledge of the will, but in that case,
it appears, not for the purpose of his incurring liabilities: Houghton v Bell (1892) 23 SCR 498-508 (liability as trustee).
6 Doe d Chidgey v Harris (1847) 16 M & W 517 at 523-524 (acceptance held equivocal on subsequent disclaimer).
7 A-G v Munby (1858) 3 H & N 826 at 831 (attempted disclaimer by executors of legatee who had accepted). Cf Re
Shepherd, Harris v Shepherd [1943] Ch 8, [1942] 2 All ER 584.
[330.060]
Disclaimer
Disclaimer1 of a gift by will may be made in the case of a person sui juris by informal acts of conduct as
well as by record or deed2, even if the gift confers a legal estate in real property. A disclaimer puts a
donee, as regards his liabilities, burdens and rights, in the same position as if no gift has been made to
him, but does not necessarily render the gift void in regard to all persons and for all purposes3, for
example where the donee is a trustee4.
Page 53
In general a disclaimer or renunciation of gifts or benefits under a will may be retracted if it is made without
consideration and if no one has altered his position on the faith of it5.
1 As to what constitutes a disclaimer see Doe d Wyatt v Stugg (1839) 5 Bing NC 564; Doe d Chidgey v Harris (1847) 16 M &
W 517. A disclaimer may have the effect of accelerating subsequent limitations see [330.069], and a disclaimed legacy falls
into residue: Re Backhouse, Westminster Bank Ltd v Shaftesbury Society and Raggen School Union [1931] WN168. See
also the Wills Act 1959 (Act 346) s 19 whereas a disclaimed residue falls into partial intestacy.
2 A deed is sufficient and is advisable particularly in the case of a trustee (Begbie v Crook (1835) 2 Bing NC 70; cf Nicloson
v Wordsworth (1818) 2 Swan 365 at 370).
3 Mallott v Wilson [1903] 2 Ch 494 at 501. See also Wilson v Wilson (1847) 1 De G & Sm 152 (disclaimer did not prejudice
charge).
4 See Robson v Flight (1865) 4 De G J & Sm 608 at 613; Re Cranstoun, Gibbs v Home of Rest for Horses [1949] Ch 523,
[1949] 1 All ER 871.
5 A-G v Christ's Hospital (1831) 1 Russ & M 626 (attempted disclaimer by charity); A-G v Munby (1858) 3 H & N 826 at 831
(attempted disclaimer by executors of legatee who had accepted).
Page 54
Administration and Succession/(1) Wills/(2) Incidents and Failure of Gifts/ E. Ademption
E. ADEMPTION
[330.061]
Methods of ademption
A testamentary gift may be adeemed or taken away from the donee:
(1) by a subsequent disposition by the testator of the subject matter of the gift;
(2) by a change in the ownership or nature of the property; and
(3) by the presumption that the testator does not intend to provide double portions for his
children or other persons to whom he stands in loco parentis1.
Apart from the presumption as to double portions, there can be no ademption of a residuary gift2. A
specific gift may be adeemed by its subject matter ceasing to be part of the testator's estate or ceasing to
be subject to his right of disposition3. The gift may be adeemed by the testator's own disposition of it, for
example by sale or change of investment4. After a sale of specifically devised property the money
produced by the sale, if not otherwise disposed of by the will, passes as part of the general personal
estate5, and, if the sale is not completed until after the testator's death, the donee takes the intermediate
rents until completion to which the testator is entitled6. A specific gift of chattels in a certain locality is as a
rule adeemed by their permanent removal to another locality7.
Where the nature of the property has changed, the first consideration, in deciding whether a gift is
adeemed, must always be the words used by the testator in describing or dealing with the property
bequeathed8. From the words of the particular will, the court may find that the testator contemplated a
change of investment, and that the thing bequeathed is the property which for the time being represents
the property which the testator formerly had9. In such a case the gift includes reinvestments into which the
investment representing the gift can be traced10.
A bequest of a debt is adeemed by the whole debt being paid to the testator in his lifetime11.
1 Re Vaux, Nicholson v Vaux [1939] Ch 465, [1938] 4 All ER 703, CA (Eng) .
2 Re Walker, Goodwin v Scott [1921] 2 Ch 63.
3 See Re Borrer's Trusts, Dunlop v Borrer (1909) 54 Sol Jo 32; Re Rose, Midland Bank Executor and Trustee Co Ltd v Rose
[1949] Ch 78, [1948] 2 All ER 971; Bronsdon v Winter (1738) Amb 57; Hayes v Hayes (1836) 1 Keen 97; Robinson v
Addison (1840) 2 Beav 515; Re Willcocks, Warwick v Willcocks [1921] 2 Ch 327; Re Gage, Crozier v Gutheridge [1934] Ch
536; Re Borne, Bailey v Bailey [1944] Ch 190, [1944] 1 All ER 382.
4 Humphreys v Humphreys (1789) 2 Cox Eq Cas 184 (sale); Harrison v Jackson (1877) 7 Ch D 339; Macdonald v Irvine
(1878) 8 Ch D 101, CA (Eng) (change of investment). A contract for sale by a testator which is unenforceable or rescinded
by the purchaser does not cause ademption (Re Pearce, Roberts v Stephens (1894) 8 R 805, nor does a mere request by
the testator to his agent to sell (Harrison v Asher (1848) 3 De G & Sm 436).
5 Moor v Raisbeck (1841) 12 Sim 123 at 139.
6 Watts v Watts (1873) LR 17 Eq 217 at 221.
7 Green v Symonds (1730) 1 Bro CC 129n; cf Lord Brooke v Earl of Warwick (1848) 2 De G & Sm 425 (pictures temporarily
away from the mansion for cleaning passed).
8 Re Bridle (1879) 4 CPD 336 at 341 per Lindley J ; Re Slater, Slater v Slater [1906] 2 Ch 480 at 484 per Joyce J .
Page 55
9 See Re Moses, Beddington v Beddington [1902] 1 Ch 100 at 120, CA (Eng) ; affd sub nom Beddington v Baumann [1903]
AC 13 at 15, HL .
10 For this purpose, money on deposit may be an investment: Re Lewis's Will Trusts, O'Sullivan v Robbins [1937] Ch 118,
[1937] 1 All ER 227.
11 Re Bridle (1879) 4 CPD 336.

Page 56
Administration and Succession/(1) Wills/(2) Incidents and Failure of Gifts/ F. Lapse/ (i) In General
F. LAPSE
(i) In General
[330.062]
Meaning of 'lapse'
The term 'lapse' is usually applied to the failure of a testamentary gift arising owing to the death of the
devisee or legatee in the testator's lifetime1, whether before or after the date of the will2. As a rule3, a
devisee or legatee must survive the testator4 in order that he or his estate may have the benefit of the
gift5, and a confirmation by codicil of a gift in a will to a legatee who has died since the date of the will
does not prevent a lapse6.
1 Elliott v Davenport (1705) 1 P Wms 83. See also the Wills Act 1959 (Act 346) s 19.
2 Maybank v Brooks (1780) 1 Bro CC 84, where it was held that extrinsic evidence was inadmissible to prove that the
testator knew at the date of his will that the legatee was dead; Clarke v Clemmans Selway v Clemmans, (1866) 36 LJ Ch
171. A provision in a will against lapse of legacies given by 'this my will' extends to legacies given by a codicil: Re Smith,
Prada v Vandroy [1916] 2 Ch 368, CA (Eng) .
3 For exceptions see [330.065]-[330.067].
4 As to the burden of proof of survivorship see [330.017].
5 Elliott v Davenport (1705) 1 P Wms 83.
6 Hutcheson v Hammond (1790) 3 Bro CC 128. See also Re Fraser, Lowther v Fraser [1904] 1 Ch 726, CA (Eng) .
[330.063]
Application of the doctrine to powers
The doctrine of lapse applies to powers created by will, and a power of appointment1 fails if the testator
survives the donee of the power, but the death of the donee of a power prior to the testator does not
cause the interests of persons taking in default of appointment to lapse2.
A power to appoint by will to an individual cannot be exercised in favour of his executors if the individual
dies before the donee of the power3, and therefore, any appointment to the individual lapses if he
predeceases the donee4. Where, however, a power of appointment among a class or among named
individuals is given by will, and all the objects survive the testator, but one or more die in the lifetime of
the donee of the power, the power may be exercised in favour of the survivors.
1 Jones v Southall (No 2) (1862) 32 Beav 31.
2 Nichols v Haviland (1855) 1 K & J 504.
3 Re Susanni's Trusts (1877) 47 LJ Ch 65. An appointment under a general power may be saved from lapse by a
substitutional appointment to the executors or administrators of the object of the power.
4 Freeland v Pearson (1867) LR 3 Eq 658 (following Reid v Reid (1858) 25 Beav 469; Kennedy v Kingston (1821) 2 Jac &
Page 57
W 431).
[330.064]
Lapse of charitable legacies
Legacies1 to charitable institutions ceasing to exist in the testator's lifetime lapse2 or are applicable
cy-pres, depending on whether the gift is construed to be for the benefit of a particular institution or to
import a general charitable intention3. Where a testator intends to benefit several charitable objects, one
of which fails, the fund must not be distributed among the other objects if the one that fails bears no
resemblance to the others4.
1 As to legacies generally see [330.563] and following.
2 Re Ovey, Broadbent v Barrow [1885] 29 Ch D 560; Re Harwood, Coleman v Innes [1936] Ch 285. See also Re Spence
(decd), Ogden v Shackleton [1979] Ch 483, [1978] 3 All ER 92 (gift to defunct old peoples' home expressed with
particularity showed no general charitable intention).
3 Re Royce, Turner v Wormald [1940] Ch 514.
4 Ironmongers' Co v A-G (1844) 10 Cl & Fin 908 at 927; Lyons Corporation v Advocate-General of Bengal (1876) 1 App
Cas 91, PC .
Page 58
Administration and Succession/(1) Wills/(2) Incidents and Failure of Gifts/ F. Lapse/ (ii) Exception from Lapse
(ii) Exception from Lapse
[330.065]
Gift to testator's issue
Where there is no contrary intention in the will1, a devise or bequest of any property to a child or other
issue2 of the testator, for any estate or interest not determinable at or before the death of that child or
issue, does not lapse if the devisee or legatee predeceased the testator leaving issue who were living at
the testator's death, but takes effect as if the devisee or legatee had died immediately after the testator3,
and becomes disposable under the will4 of the devisee or legatee, or as part of his estate if he dies
intestate5. If the testator intended a gift to go over in the event of his child predeceasing him, he had
expressly so to provide6.
This rule is also applicable in the case of a gift to a child dead at the date of the will7, or where the issue
surviving the testator was not living at the death of the devisee or legatee8.
The gift must, however, be to the legatee as a designated individual9. The rule is not applicable where
the gift is to the children of the testator as a class not ascertainable until the testator's death10, even
where there happens to be only one member of the class11. However, by suitable words the testator
might expressly provide for substitution of the issue of a member of the class for their parent so as to
make such issue members of the class12.
A gift under a general power of appointment to a child or issue predeceasing the testator and leaving
issue is preserved from lapse13.
1 As to the expression of a contrary intention see Re Morris, Corfield v Waller (1916) 86 LJ Ch 456; Re Meredith, Davies v
Davies [1924] 2 Ch 552; Re Wilson, Lothian v Wilson (1920) 89 LJ Ch 216.
2 The word 'issue' means testator's lineal descendants and was held to include grandchildren of testator: see Davenport v
Hanbury (1796) 3 Ves 257. The word 'issue' does not apply to collateral relations of the testator. See Re Khoo Khye Chear
(decd), Robert Cecil Russell v Khoo Boo Boon [1938] MLJ 244, where the court held that adopted children cannot be
included in the words 'child or other issue of the testator' in the Wills Ordinance (SS Cap 53) s 27; cf the Distribution Act
1958 (Act 300) s 3 where 'child' includes a child adopted under the Adoption Act 1952 (Act 257) and the Inheritance
(Family Provision) Act 1971 (Act 39) s 2 where 'son' and 'daughter' includes one who is adopted under any written law.
However, the present position is stated in the Adoption Act 1952 s 9(3) which provides that in any disposition made,
whether by instrument inter vivos or by will (including codicil), after the date of an adoption order, any reference to the child
or children of the adopter will be construed to include the adopted child, unless the contrary intention appears. Further, in
Re Khoo Khye Chear (decd), Robert Cecil Russell v Khoo Boo Boon (above), the court also held that the words 'male
issue' meant the legitimate male descendants of the testator living at the date of his death. See also Cheng Ee Mun v Look
Chun Heng [1962] MLJ 411 at 412, CA (Sing), per Wee Chong Jin J , where the court held that the description of 'issue'
must be taken prima facie to mean legitimate issue; this appears to be consistent with the definition of 'child' in the
Distribution Act 1958 which means a legitimate child.
3 See the Wills Act 1959 (Act 346) s 25 (the corresponding English provision is found in the Wills Act 1837 (UK) s 33 which
has since been substituted by the Administration of Justice Act 1982 (UK) s 19). This rule as to the prevention of lapse is
aimed solely at preserving the gift to the child in the parent's will and the fiction that the donee's death occurred
immediately after that of the testator does not alter the way in which the deceased donee's estate is to be administered
which is administered in accordance with the law in force at the true date of his death (Re Hurd, Stott v Stott [1941] Ch
196, [1941] 1 All ER 238, in which case it was held that the estate of the donee who died intestate in 1923, devolved,
according to the law then in force and not according to that in force at the time of her fictional death in 1939).
4 Johnson v Johnson (1843) 3 Hare 157; Re Mason's Will (1865) 34 Beav 494. If the child of the testator dies bankrupt,
the share goes to his trustee a bankruptcy: Re Pearson, Smith v Pearson [1920] 1 Ch 247 following a dictum of Stirling LJ
in Re Scott [1901] 1 KB 228 at 240, CA (Eng) .
Page 59
5 Skinner v Ogle (1845) 9 Jur 432; Re Peerless, Peerless v Smith [1901] WN 151.
6 Re Mores' Trust (1851) 10 Hare 171 at 178.
7 Mower v Orr (1849) 7 Hare 473; Wisden v Wisden (1854) 2 Sm & G 396.
8 Re Parker (1860) 1 Sw & Tr 523 (where a testatrix gave all her property to her daughter, and the daughter died in her
lifetime leaving a child who also predeceased the testatrix, leaving a child who survived the testatrix). The rule has been
held not to apply to the case of a posthumous child born to the child who had died before the testator (Re Griffiths'
Settlement, Griffiths v Waghorne [1911] 1 Ch 246 overruled in Elliot v Lord Joicey [1935] AC 209 at 230, HL, per Lord
Russell ).
9 Re Stansfield, Stansfield v Stansfield (1880) 15 Ch D 84. As to a gift to 'my surviving children' see Fullford v Fullford
(1853) 16 Beav 565.
10 Olney v Bates (1855) 3 Drew 319; Re Jackson, Shiers v Ashworth (1883) 25 Ch D 162 at 164.
11 Re Harvey's Estate, Harvey v Gillow [1893] 1 Ch 567.
12 Aspinall v Duckworth (1866) 35 Beav 307; Re Greenwood, Greenwood v Sutcliffe [1912] 1 Ch 392; Re Cousen's Will
Trusts, Wright v Killick [1937] Ch 381 at 391.
13 This is so by virtue of the Wills Act 1959 s 20, the effect of which is to abolish the distinction between property
belonging to a testator and property over which he has a general power of appointment and hence a general devise or
bequest to a child or issue of the testator will operate as an execution of a general power of appointment to that child or
issue, in absence of a contrary intention in the will.
[330.066]
Alternative gifts
Where it is clear that, in the event of the legatee or devisee predeceasing the testator, an alternative
bequest is intended to be substituted1, the alternative gift takes effect on the death of the original legatee
in the testator's lifetime. Thus, a gift of certain shares in the residuary estate to the son of the testator did
not lapse as the will provided a gift over to the issues of the son2.
A legacy may be given to the executors or administrators of a deceased person as an original gift3, or to
the executors or administrators of the legatee as a substitutional gift in case he predeceases the
testator4.
1 For a form of substituted gifts see 23 The Encyclopaedia of Forms and Precedent (4th Edn) pp 1024-1025 Forms
23:E:41, 23:E:42.
2 Foo Yin Choo v Foo Siew Lan [1972] 1 MLJ 69, FC (gift to A, but if A dies before the date of distribution, leaving issue,
his share would go to such issue per stirpes, of more than one in equal shares).
3 Trethewy v Helyar (1876) 4 Ch D 53.
4 Sibley v Cook (1747) 3 Atk 572 (bequest to A and his executors or administrators with declaration against lapse); Long v
Watkinson (1852) 17 Beav 471 (to A 'and a case of his death to his executors or administrators').
[330.067]
Future gifts
A legacy to a legatee to become vested at the expiration of a specified period from a testator's death
apparently fails if the legatee does not survive the period1. If, however, a testator directs payment of the
income of a fund for a specified period after his death to one person followed by a bequest of the capital
Page 60
to another, the bequest of the capital does not lapse by that other's death prior to the expiration of the
period2, nor does the death of a prospective tenant for life in the testator's lifetime cause a gift in
remainder3 or a contingent limitation over4 to lapse, although the gift over may lapse from other causes5.
1 Smell v Dee (1707) 2 Salk 415; Bruce v Charlton (1842) 13 Sim 65; Re Eve, Belton v Thompson (1905) 93 LT 235.
2 Re Bennett's Trust (1857) 3 K & J 280; Re Boam, Shorthouse v Annibal (1911) 56 Sol J 142.
3 Habergham v Ridehalgh (1870) LR 9 Eq 395 at 400.
4 Rackham v De La Mare (1864) 2 De GJ & SM 74, where there was a gift to A for life and after her death to her children,
with a gift over in case no child attained a vested interest, and A died in the lifetime of the testator.
5 Williams v Jones (1826) 1 Russ 517.

Page 61
Administration and Succession/(1) Wills/(2) Incidents and Failure of Gifts/ G. Effect of Failure and Lapse
G. EFFECT OF FAILURE AND LAPSE
[330.068]
General rule
As a general principle, unless the testator provides otherwise, all gifts, other than gifts of shares or interest
in the general residue, which lapse or fail or become void fall into the general residue. Where a will
contains a residuary devise or bequest, then, unless a contrary intention appears, any property, comprised
or intended to be comprised in any devise or bequest which fails or becomes void by reason of the death
of the devisee or legatee in the lifetime of the testator, or by reason of such devise or bequest being
contrary to law, or otherwise incapable of taking effect, is included in the residuary devise or bequest
respectively1. If there is no residuary devise or bequest, or if the gift which lapses and fails is of a share or
interest in the general residue, the gift passes to those entitled on an intestacy2. There may be a particular
residuary gift, or a gift of the residue of a particular description of property, a specific part of which is the
subject of a prior gift, and it may appear that on failure of the prior gift the subject matter is to fall into the
particular residue3.
1 Wills Act 1959 (Act 346) s 19. A specific legacy passes on disclaimer under a residuary gift: Re Backhouse [1931] WN
168.
2 See eg Re Ramasamy Chettiar, Krishnan Chettiar v Salakshi Achi [1956] MLJ 183 (testator's direction to widow to adopt
but widow failed to adopt, and as there was no gift over in will, court held there was an intestacy with regard to the residue of
the estate). Property included in a residuary devise or bequest which lapses also passes as on an intestacy: see Ackroyd v
Smithson (1780) 1 Bro cc 503; Re Midgley, Barclays Bank Ltd v Midgley [1955] Ch 576, [1955] 2 All ER 625.
3 See eg Malcolm v Taylor (1831) 2 Russ & M 416; De Trafford v Tempest (1856) 21 Beav 564. Any property of which the
testator fails to dispose, either because his will does not contain a gift of general residue, or because a gift of residue does
not take effect, is resorted to as the first fund available for the discharge of the funeral, testamentary and administration
expenses, debts and liabilities payable out of the testator's estate: see the Probate and Administration Act 1959 (Act 97) s
69, Sch 1.
[330.069]
Acceleration of subsequent interests
The effect of failure of a prior life interest or other particular interest through the donee of that interest
being dead or prevented by law from taking the gift, for example, owing to the attestation of the will by him
or his spouse1, or through revocation by codicil2, disclaimer3, forfeiture4 or lapse5, is ordinarily to
accelerate the subsequent interests which are limited to take effect on the regular determination of that
prior interest, but the will may expressly or impliedly indicate a contrary intention6.
1 Jull v Jacobs (1876) 3 Ch D 703; Re Clark, Clark v Randall (1885) 31 Ch D 72 (explained in Aplin v Stone [1904] 1 Ch 543
at 547-548). As to the effect of such attestation see [330.019].
2 Lainson v Lainson (1854) 5 De GM & G 754; Eavestaff v Austin (1854) 19 Beav 591; Re Whitehorne, Whitehorne v Best
[1906] 2 Ch 121; Re Salmonsen, National Provincial Bank Ltd v Salmonsen (1965) 109 Sol Jo 477. As to revocation by
codicil see [330.040].
3 Re Scott, Scott v Scott [1911] 2 Ch 374 at 377; Re Young, Fraser v Young [1913] 1 Ch 272 at 275; Re Taylor, Lloyds Bank
Ltd v Jones [1957] 3 All ER 56, [1957] 1 WLR 1043; Re Hatfield's Will Trusts [1958] Ch 469, [1957] 2 All ER 261. As to
Page 62
disclaimer see [330.060].
4 Craven v Brady (1869) 4 Ch App 296; Blathwayt v Baron Cawley [1976] AC 397, [1975] 3 All ER 625, HL (where a son
born after the forfeiture of a life interest by his father nevertheless took an entailed interest at birth). As to forfeiture see
[330.237]-[330.240].
5 Fuller v Fuller (1595) Cro Eliz 422.
6 This rule applies both to real and to personal estate: see the cases cited in notes 1-3 above. In two settlement cases, Re
Flower's Settlement Trusts, Flower v IRC [1957] 1 All ER 462, [1957] 1 WLR 401, CA (Eng) (failure for uncertainty of life
interests), and Re Young's Settlement Trusts, Royal Exchange Assurance v Taylor-Young [1959] 2 All ER 74, [1959] 1 WLR
457 (surrender of life interests), there was held to be no acceleration of subsequent interests because the settlor had shown
a contrary intention.
Page 63
Administration and Succession/(1) Wills/(3) Construction by the Court/ A. Courts of Construction
(3) CONSTRUCTION BY THE COURT

A. COURTS OF CONSTRUCTION
[330.070]
Functions of the courts of construction
All wills required to be construed in accordance with the laws of Malaysia are construed according to the
rules of construction that would be applicable thereto if they were being construed in a Court of Justice in
England1. The cardinal rule of English law as to the construction and effect of all wills is that the testator's
intention, as declared by him and apparent in the words of his will, has effect given to it, so far and as
nearly as may be consistent with law2.
The application of the rule requires a court of construction3 to consider two matters:
(1) the intention of the testator disclosed by the will4; and

(2) the manner in which effect can be given to that intention5.
In ascertaining the testator's intention, it is a settled principle that his intention is to be sought in the words
that he has used in his will given, normally, their natural and grammatical meaning, but that that meaning
can admit of modification to accord with a real intention shown by the will as a whole6.
1 See the Wills Act 1959 (Act 346) s 30(3); and the Evidence Act 1950 (Act 56) s 100 (see EVIDENCE (2011 Reissue)
[500.268]).
2 Egerton v Earl Brownlow (1853) 4 HL Cas 1 at 181 ('the governing principle'); Re Wynch's Trusts, ex p Wynch (1854) 5 De
GM & G 188 at 226 ('the great principle'); Baker v Baker (1858) 6 HL Cas 616 at 622; Webber v Stanley (1864) 16 CBNS
698 at 752 ('the purpose of construction is, to effectuate the intention of the testator expressed in the words of the will'); Re
Morgan, Morgan v Morgan [1893] 3 Ch 222 at 228, CA (Eng) ; Re Palmer, Palmer v Answorth [1893] 3 Ch 369 at 373, CA
(Eng), per Lindley LJ ; Perrin v Morgan [1943] AC 399 at 406, 416, 420, [1943] 1 All ER 187 at 190, 195, 197, HL ('the
cardinal rule'). See also Re Will of P M Framroz (decd), S F Framroz v The Chartered Bank (M) Trustee Ltd [1972] 1 MLJ
43, [1969-1971] SLR 180, CA (Sing) ; Jong Chan Siong v Loh Shui Kin [1973] 1 MLJ 245, FC .
3 In this title the term 'court of construction' is used of any court entertaining, within the scope of its jurisdiction, any question
as to the meaning and effect of an instrument of a testamentary nature. The determination of such question is within the
jurisdiction of the High Court (see RC O 80). In the High Court, procedure is by way of originating summons in the Civil
Division. See generally [190] CIVIL PROCEDURE (2014 Reissue).
4 Ie the intention disclosed by the whole of the will, for words at one point in a will may be given a modified meaning if it is
clear from other expressions in the will or from the whole context of the will that modification accords with the real intention
of the testator expressed in his will regarded as a whole: see Grey v Pearson (1857) 6 HL Cas 61 at 99 per Lord St
Leonards , cited in Re Rowland, Smith v Russell [1963] 1 Ch 1 at 12, [1962] 2 All ER 837 at 842, CA (Eng), per Harman LJ .
See Re Chin Sem Lin's Settlement, Yong Tet Foong v Chin Thin Lee [1971] 2 MLJ 152, where the court held that where
words in a will are otherwise not sensible or seem also to be incongruous or irreconcilable with plain provisions, they may be
rejected. See also Re Lim Yew Teok (decd), British and Malayan Trustees Ltd v Chng Kiat Leng [1966] 2 MLJ 260,
[1965-1968] SLR 475, where the court held that where it is clear on the face of a will that the testator has not accurately, or
completely expressed his meaning by the words he has used, and it is also clear what are the words which he has omitted,
these words may be supplied in order to effectuate the intention as collected from the context.
5 Doe d Hickman v Haslewood (1837) 6 Ad & El 167 at 174.
6 Grey v Pearson (1857) 6 HL Cas 61; Re Rowland, Smith v Russell [1963] 1 Ch 1, [1962] 2 All ER 837, CA (Eng) ; Re Chin
Sem Lin's Settlement, Yong Tet Foong v Chin Thin Lee [1971] 2 MLJ 152; Re Lim Yew Teok (decd), British and Malayan
Trustees Ltd v Chng Kiat Leng [1966] 2 MLJ 260, [1965-1968] SLR 475; William Tan Sam Kit v Ngui Ban Lee [2000] 1 MLJ
574, where the court held that in interpreting a will, it was not bound, in the absence of special circumstances, to adopt a
Page 64
fixed meaning of the word 'money' as being its 'legal' as opposed to its 'popular' meaning, but must ascertain as between
various usual meanings, which was the correct interpretation of the particular document in the light of the context and other
relevant circumstances.
[330.071]
Ascertaining intention
The first duty1 of a court of construction is to ascertain the intention of the language of the will, to read the
words used and ascertain the intention of the testator from them2. Unexpressed mental intentions are
irrelevant3. Where the will must be in writing, the only question is what is the meaning of the words used in
that writing4. The expressed intention is in all cases taken as the actual intention, whatever the testator in
fact intended5, and as a general rule the court may not give effect to any intention which is not expressed
or implied in the language of the will6.
1 Ongley v Chambers (1824) 8 Moore CP 665 at 685; Macpherson v Macpherson (1852) 16 Jur 847 at 848, HL ; Martin v
Lee (1861) 14 Moo PCC 142 at 153 per Turner LJ ('the paramount duty of the courts'); Enohin v Wylie (1862) 10 HL Cas 1
at 26; Comiskey v Bowring-Hanbury [1905] AC 84 at 91, HL . See also Hsu Yik Chai v Hsu Yaw Tang [1982] 2 MLJ 227, FC
.
2 Re Freeman, Hope v Freeman [1910] 1 Ch 681 at 691, CA (Eng) ; Re Mellor, Dodgson v Ashworth (1912) 56 Sol Jo 596.
See also Re Tan Saw Gan (decd), Yeo Choon Hooi v Yeo Seiw Gnoh [1968] 1 MLJ 17; Chong Peng Han v Chong Toh Jin
[1990] 1 MLJ 419, [1989] SLR 797.
3 Doe d Gwillim v Gwillim (1833) 5 B & Ad 122 at 129 per Parke J .
4 Grey v Pearson (1857) 6 HL Cas 61 at 106 per Lord Wensleydale . See Re Will of P M Framroz (decd), S F Framroz v
The Chartered Bank (M) Trustee Ltd [1972] 1 MLJ 43, [1969-1971] SLR 180, CA (Sing) ; Hsu Yik Chai v Hsu Yaw Tang
[1982] 2 MLJ 227 at 230, FC , where the court held 'that the court is not entitled to make a fresh will for the testator merely
because it strongly suspects that the testator did not mean what he has plainly said'. As to the requirement of writing see
[330.028].
5 Simpson v Foxon [1907] P 54 at 57 per Bargrave Deane J .
6 Scale v Rawlins [1892] AC 342 at 343-344, HL, per Lord Halsbury and at 344 per Lord Watson . See also Livesey v
Livesey (1849) 2 HL Cas 419 at 438 per Lord Campbell ; Wilson v O'Leary (1872) 7 Ch App 448 at 453, CA (Eng) ; Re Duke
of Cleveland's Settled Estates [1893] 3 Ch 244 at 251, CA (Eng) ; Re Harpur's Will Trusts, Hallen v A-G [1962] Ch 78 at 94,
[1961] 3 All ER 588 at 594, CA (Eng), per Harman L .
[330.072]
Questions involved
In ascertaining the testator's intention, the court of construction is concerned with three distinct matters:
(1) the words that the testator has used to express his intention1;
(2) the meaning of those words in relation to the persons and things described, that is to say,
who and what are the specific persons and things to be identified as the donees and the
subjects of disposition, or as the persons and things otherwise mentioned in the will2; and
(3) the meaning of the words in relation to the disposition of property among the donees3.
To understand the language employed, the court is entitled to sit in the testator's armchair4. When the
testator's intention has been discovered, the inquiry then to be made is whether there is any rule
preventing the intention from taking effect5, and generally how the intention can be effectuated. The court
is under a duty to give effect to the intention accordingly, however it is expressed6.
Page 65
Any rule the application of which is independent of that intention and may operate against or to defeat that
intention is generally known as a rule of law7.
Any rule adopted by the court for ascertaining8 or effectuating9 that intention as declared in the will, and
dependent, for its application to any will, on whether it is consonant with or contrary to the whole will10, is
generally called a rule of construction11.
1 The court of construction accepts the probate as conclusively showing the state in which the will was at its execution and
containing the whole will to be construed. Where under the present practice a photocopy of the will is annexed to the
probate, this in effect is equivalent to the original will. See [330.075]. See also William Tan Sam Kit v Ngui Ban Lee [2000] 1
MLJ 574.
2 Webber v Stanley (1864) 16 CBNS 698 at 751. Evidence is admissible to show facts and circumstances corresponding, as
far as possible, with those referred to in the will, for example to show that persons and property actually exist as described in
the will. As to the description of property and persons see [330.127].
3 As to evidence for this purpose see [330.074]. As a matter of construction the three questions stated in the text may
become interrelated, but the court's attitude is in the first instance distinct in each case with regard to the evidence
admissible.
4 See Perrin v Morgan [1943] AC 399 at 420 per Lord Romer . See also Jong Chan Siong v Loh Shui Kin [1973] 1 MLJ 245,
FC ; Hsu Yik Chai v Hsu Yaw Tang [1982] 2 MLJ 227, FC .
5 Garth v Baldwin (1755) 2 Ves Sen 646 at 655 per Lord Hardwicke LC . As to the doubtful and ambiguous cases of
construction where the court acts on the principle that it is better for words to have effect than to be rendered void see
[330.118].
6 Smith v Osborne (1857) 6 HL Cas 375 at 393. In the case of a will, if the intention is shown, the mode of expression of that
intention and the form and language of the will are unimportant. Thus, the want of technical words which are necessary in
some instrument for the purpose of giving expression to intention, or any error in grammar is immaterial; in all such cases a
benevolent construction is adopted.
7 Eg the rules of law as to limitation of estates and interests generally.
8 See eg the general principles stated in [330.091] and following.
9 Thus, the cy-pres doctrine and rule against perpetuities are termed as rules of construction, but is inoperative in
determining in the first instance the intention of the testator: Monypenny v Dering (1850) 7 Hare 568 at 589 per Wigram V-C
.
10 The intention of the testator is also taken into account in administering his assets (exclusion of statutory order of
applications of assets).
11 As to the general principles of construction see [330.091] and following.

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Administration and Succession/(1) Wills/(3) Construction by the Court/ B. Admissibility of Evidence/ (i) In
General
B. ADMISSIBILITY OF EVIDENCE
(i) In General
[330.073]
General rule
In a court of construction the only legitimate evidence of the testator's intentions is the will itself, properly
authenticated1, and any codicil to it. For the purpose of construing a codicil, the court may look at the
original will or any other codicil to it, and, similarly, the court may look at a codicil for the purpose of
construing the original will2. The court may look at a recital of a will contained in a codicil and may
construe the will by reference to this recital3, unless it is obviously erroneous4. In order that the will may
be properly expounded, the court adopts the general rule that any evidence of the circumstances is
admissible which in its nature and effect simply explains what the testator has written5, but in general6 no
evidence may be admitted which in its nature or effect is applicable to the purpose of showing merely
what he intended to have written7. Extrinsic evidence may be resorted to for the purpose of proving a
fact that makes intelligible something in the will which, without the aid of such evidence, would not be
intelligible8.
1 The will has to be authenticated by the grant of probate or letters of administration with the will annexed; and in general,
the court receives such a grant, while unrevoked, as conclusive evidence of the testamentary capacity of the testator, the
testamentary nature of the instrument and the validity of the will as regards form and execution. The court assumes that all
documents admitted to probate are testamentary documents to be construed in order to ascertain the intention, and that
they properly constitute the whole of the testamentary dispositions of the testator: see [330.075].
2 Hartley v Tribber (1853) 16 Beav 510 at 515; Re Townley, Townley v Townley (1884) 50 LT 394 at 396.
3 Re Venn, Lindon v Ingram [1904] 2 Ch 52 at 55.
4 Skerrat v Oakley (1798) 7 Term Rep 492.
5 Hampshire v Peirce (1751) 2 Ves Sen 216 at 217, as qualified by Doe d Hiscocks v Hiscocks (1839) 5 M & W 363 at
371.
6 As to exceptions see [330.071], [330.075], [330.087] and [330.122].
7 See Wigram's Extrinsic Evidence pl 9 (4th Edn) 7-8, cited with approval in Re Mayo, Chester v Keirl [1901] 1 Ch 404 at
405-406 per Farwell J . See also Re Hodgson, Nowell v Flannery [1936] Ch 203.
8 Clementson v Gandy (1836) 1 Keen 309 at 316; Re Glassington, Glassington v Follett [1906] 2 Ch 305 at 314 per Joyce
J (explaining Higgins v Dawson [1902] AC 1, HL ).
[330.074]
Difficulties of construction
The court construes the whole will in the light of the knowledge of the meaning of the words and
expressions used and of the identity of the persons and things described by the will, and of the nature of
the facts and circumstances there mentioned, which has been obtained by the admission of evidence of
Page 67
the material circumstances1. However, evidence is not admitted to enable the court to construe a will
where the words themselves require no interpretation but the difficulty is only in the construction of the
sentence in which the words occur2. Where, therefore, the matter in doubt does not relate to the persons
and things described by the will, then, even though it can be shown by evidence that the testator's
intention was different from that shown by the language of the will, the language of the will, if clear, must
settle the rights of the parties3.
Events that might possibly have happened after the date of the will are to be considered, as well as
those that did happen4. On the other hand, the ascertainment of the testator's intentions shown by the
will cannot be varied according to the actual course of subsequent events5.
Where the words of the will, aided by evidence of the material facts of the case, or evidence of the
testator's intention in those special cases where it is admissible, are insufficient to determine his
meaning, the gift in question is void for uncertainty6.
Where the meaning of the will is ambiguous, then for the purpose of construction, the court generally
resorts to the surrounding circumstances as a help in ascertaining the meaning, and places itself in the
testator's position, in order to avoid attributing to him a capricious or unreasonable intention7. However, if
the evidence of the surrounding circumstances is insufficient to resolve the ambiguity, then, as a last
resort8, evidence has always been admitted to prove the testator's declarations of his intention as to
which of the persons and things so described was meant by him9. Such declarations need not be
contemporaneous with the will, but may be of prior or later date, and may have more or less weight
according to the time and circumstances under which they were made10.
1 Thus, a gift 'to A or B', where A and B represent persons ascertained by description, cannot be construed until it is
known who A and B respectively are, and in what relation, if any, the persons represented by B stand to those represented
by A, so as to be able to supply what is the contingency to be understood as involved in the word 'or': Re Roberts, Percival
v Roberts [1903] 2 Ch 200 at 203 per Joyce J .
2 Higgins v Dawson [1902] AC 1 at 10-11, HL .
3 Higgins v Dawson [1902] AC 1 at 8-10, HL ; Merchant Taylor's Co v A-G (1871) 6 Ch App 512 at 519. See also Re Will
of P M Framroz (decd), S F Framroz v The Chartered Bank (M) Trustee Ltd [1972] 1 MLJ 43, [1969-1971] SLR 180, CA
(Sing) ; Hsu Yik Chai v Hsu Yaw Tang [1982] 2 MLJ 227, FC , where the court stated that when seated in the testator's
armchair, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator
did not mean what he has plainly said.
4 Boreham v Bignall (1850) 8 Hare 131 at 137; Grey v Pearson (1857) 6 HL Cas 61 at 109 per Lord Wesleydale ; Harding
v Nott (1857) 7 E & B 650 at 657-658.
5 Re Clark's Trusts (1863) 32 LJ Ch 525 at 529 per Wood V-C .
6 Wigram's Extrinsic Evidence (5th Edn) 91, Proposition VI. See also Re Jackson Beattie v Murphy [1933] Ch 237 at 242.
7 Belaney v Belaney (1867) 2 Ch App 138 at 142; Hensman v Fryer (1867) 3 Ch App 420 at 424. See also Gordon v
Gordon (1871) LR 5 HL 254 at 273.
8 Healy v Healy (1875) IR 9 Eq 418 at 421 per Sullivan MR .
9 Jones v Newman (1750) 1 Wm Bl 60; Doe d Morgan v Morgan (1832) 1 Cr & M 235; Re Ray, Cant v Johnstone [1916] 1
Ch 461; Robertson v Flynn [1920] 1 IR 78 (instructions for will looked at).
10 Doe d Allen v Allen (1840) 12 Ad & El 451 at 455. As to a presumption applied in ambiguous cases see [330.118].
[330.075]
Meaningless or ambiguous language
In relation to the will of a testator, where the words of the will, aided by evidence of the material facts of
Page 68
the case, or evidence of the testator's intention in those special cases where it is admissible1, are
insufficient to determine his meaning, the gift in question is void for uncertainty2.
Where the meaning of the will of a testator is ambiguous3, then for the purpose of construction, the court
generally resorts to the surrounding circumstances as a help in ascertaining the meaning, and places
itself in the testator's position, in order to avoid attributing to him a capricious or unreasonable intention4.
1 As to the rule relating to the admissibility of evidence of the testator's intention see [330.086].
2 Wigram's Extrinsic Evidence (5th Edn) 91 Proposition VI.
3 The meaning of a will is not ambiguous by reason only of difficulty of construction: Higgins v Dawson [1902] AC 1 at 10,
HL, per Lord Davey .
4 Belaney v Belaney (1867) 2 Ch App 138 at 142; Hensman v Fryer (1867) 3 Ch App 420 at 424. See also Roddy v
Fitzgerald (1858) 6 HL Cas 823 at 876; Gordon v Gordon (1871) LR 5 HL 254 at 273. See further [330.104] and [330.118].
Page 69
Administration and Succession/(1) Wills/(3) Construction by the Court/ B. Admissibility of Evidence/ (ii)
Evidence of Language and its Meaning
(ii) Evidence of Language and its Meaning
[330.076]
Conclusiveness of probate
For the purpose of discovering what words the testator used, and what dispositions he made, the court of
construction accepts the probate, in the case of all Malaysian wills, as conclusively showing the state in
which the will was at its execution1, and containing the whole will to be construed2. The court may look at
the original will3 in order to settle questions arising on the punctuation4, or on the introduction of a capital
letter or other mark which may indicate where a sentence or clause was intended to begin and which
may affect its sense, or on the effect of blanks in the will, and generally in order to see whether any light
is thrown on the construction of the will by its form5. The court may take into account, as assisting the
construction, the fact that the will was made on a printed form6.
1 Bernal v Bernal (1838) 3 My & Cr 559 at 563n. See also Lynn v Beaver (1823) Turn & R 63 at 67 per Lord Eldon LC ;
Wordsworth v Wood (1847) 1 HL Cas 129 at 157n; Barnaby v Tassell (1871) LR 11 Eq 363 at 368. See also Hsu Yik Chai
v Hsu Yaw Tang [1982] 2 MLJ 227, FC (will was made in Chinese, however the English translation was accepted for
probate and it was conclusive for the purpose of construction by the court in order to give effect to the intent of the
testator).
2 In Hubbard v Alexander (1876) 3 Ch D 738, a court of construction admitted evidence to show that two codicils were not
two distinct instruments, but not for the purpose of construing them in order to determine whether they were cumulative in
effect.
3 Re Harrison, Turner v Hellard (1885) 30 Ch D 390 at 393, CA (Eng), per Lord Esher MR and at 394 per Baggallay LJ .
4 Houston v Burns [1918] AC 337 at 342, HL, per Lord Finlay ; Re Steel, Public Trustee v Christian Aid Society [1979] Ch
218, [1978] 2 All ER 1026.
5 Child v Elsworth (1852) 2 De GM & G 679 at 683; Thellusson v Woodford (1799) 4 Ves 227 at 325 (parenthesis);
Milsome v Long (1857) 3 Jur NS 1073 (where the court looked at the will, which confirmed the view based on the probate).
For cases where the court considered the effect of erasures in the original will see Manning v Purcell (1855) 7 De GM & G
55 at 66; Re Battie-Wrightson, Cecil v Battie-Wrightson [1920] 2 Ch 330.
6 Re Harrison, Turner v Hellard (1885) 30 Ch D 390, CA (Eng) ; Re Stevens, Pateman v James [1952] Ch 323, [1952] 1
All ER 674. There is no rule that in the case of inconsistency between the words of the printed forms and those in the
testator's own handwriting, the hand-written words must prevail; Re Gare, Filmer v Carter [1952] Ch 80, [1951] 2 All ER
863.
[330.077]
Other documents referred to in the will
Even though a document is not admitted to probate, it may be referred to in a will in such a manner that
the court of construction is entitled to look at it, as being virtually incorporated in that which is admitted to
probate1. For this to be possible, the document must be clearly identified by the description given of it in
the will, and it must be shown to have been in existence at the time when the will was executed2. If the
document is expressly directed not to form part of the will, it is not admissible to explain the will3. A
testator cannot by his will reserve a power to dispose of his property by an instrument not duly executed
Page 70
as a will or codicil, or orally, and evidence of any such instrument or oral disposition is, therefore,
inadmissible to show his testamentary wishes4. If a will refers in the alternative to two documents, that is,
an existing document or a future substituted document, evidence as to the existence of the future
document cannot be admitted and, consequently, evidence of the former document cannot be admitted
either as it would not reveal the testator's whole intention, and the gift, therefore, fails for uncertainty5. A
gift on the trusts of an existing settlement may, however, be effective, even though some of the trusts
cannot be given effect as testamentary dispositions6.
1 Quihampton v Going (1876) 24 WR 97.
2 Dillon v Harris (1830) 4 Bli NS 321 at 359, HL ; Allen v Maddocks (1858) 11 Moo PCC 427 at 454; Singleton v Tomlinson
(1878) 3 App Cas 404 at 413-414, HL (schedule of property); Re Deprez, Henriques v Deprez [1917] 1 Ch 24 (entries in
testator's account books).
3 Re Louis, Louis v Treloar (1916) 32 TLR 313.
4 Habergham v Vincent (1793) 2 Ves 204; Johnson v Ball (1851) 5 De G & Sm 85 at 91; Re Fane, Fane v Fane (1886) 2
TLR 510; Re Hyslop, Hyslop v Chamberlain [1894] 3 Ch 522.
5 Re Jones, Jones v Jones [1942] Ch 328, [1942] 1 All ER 642.
6 Re Edward's Will Trusts, Dalgleish v Leighton [1948] Ch 440, [1948] 1 All ER 821, CA (Eng) ; Re Schintz's Will Trusts,
Lloyd's Bank Ltd v Moreton [1951] Ch 870, [1951] 1 All ER 1095. A gift on the trusts of a deed which does not become
operative fails: Re Hurdle, Balkeney v Hurdle [1936] 3 All ER 810.
[330.078]
Evidence of and decisions as to the ordinary meaning of words
The ordinary meaning of a word is the meaning given it by the ordinary usage of society1, that is, the
testator's society, of that class and period in which he lived and moved2. Accordingly, in order to discover
the ordinary meaning of any word, the court may not only consult dictionaries of good reputation3, or
other contemporary literary sources4, but may also consider evidence of the meaning customarily given
to the word by persons in such society5, and, in the case of words describing property, by those who
deal in such property6.
1 Shore v Wilson, Lady Hewley's Charities (1842) 9 Cl & Fin 355 at 537, HL, per Coleridge J ; Re Atkinson's Will Trusts,
Atkinson v Hall [1978] 1 All ER 1275, [1978] 1 WLR 586.
2 See Perrin v Morgan [1943] AC 399 at 420 per Lord Romer . The ordinary meaning and therefore legal interpretation of
any given words may vary from case to case depending on the usages of that particular community to which the testator
belongs. Customary law of the racial or indigenous group to which the testator belongs will be given recognition by the
court. See Yeap Leong Huat v Yeap Leong Soon [1989] 3 MLJ 157, SC (where the court applied Chinese customary law
in order to interpret the meaning of 'children of the son Yeap Hock Hoe by his principal wife'). See also Jong Chan Siong v
Loh Shui Kin [1973] 1 MLJ 245, FC (testator was a Tai Poo Kheh and the court accepted expert evidence in interpreting
the word 'family' and gave it its ordinary meaning according to usage among the Tai Poo Kheh community and held that its
meaning included all the adopted sons of the deceased even though the adopted sons were not registered under the
Sarawak Adoption of Children Order of 1875 and 1902 which applied to them).
3 Re Rayner, Rayner v Rayner [1904] 1 Ch 176, CA (Eng) . The court is not bound by the dictionary: see Grieves v
Rawley (1852) 10 Hare 63 at 65.
4 Re Rayner, Rayner v Rayner [1904] 1 Ch 176 at 187, CA (Eng) ; Marquis Camden v IRC [1914] 1 KB 641, CA (Eng)
('any literary help they can find, including the consultation of the works of standard authors and authoritative dictionaries').
5 Barksdale v Morgan (1693) 4 Mod Rep 185; Re Van Lessen, National Provincial Bank Ltd v Beaumont [1955] 3 All ER
691, [1955] 1 WLR 1326 (usage among philateslists). The customary meaning prevails even though the words in their
meaning according to general English usage would create no difficulty in applying the instrument to the facts: Underhill and
Strahan's Interpretation of Wills and Settlements (3rd Edn) 15-16.
6 Brannigan v Murphy [1896] 1 IR 418 at 426; Re Rayner, Rayner v Rayner [1904] 1 Ch 176 at 1887 per Vaughan
Page 71
Williams LJ .
Page 72
Administration and Succession/(1) Wills/(3) Construction by the Court/ B. Admissibility of Evidence/ (iii)
Evidence for Purposes of Identification
(iii) Evidence for Purposes of Identification
[330.079]
Evidence necessarily admissible
The words of a testator's will necessarily refer to facts and circumstances with respect to his property
and his family and other persons and things, and the meaning and application of his words cannot be
ascertained without evidence of such facts and circumstances1. Evidence is, therefore, necessarily
admissible to show facts and circumstances corresponding, as far as possible, with those referred to in
the will, for example to show that persons and property actually exist as described2.
The court must, however, first attempt to construe the words of the will3; and the questions whether
further evidence is to be considered, and what is the materiality of that evidence, depend on the
construction placed on those words and on the existence of any subject matter to which they exactly
correspond4.
1 Doe d Hiscocks v Hiscocks (1839) 5 M & W 363 at 367-368 per Lord Abinger CB ; Tudor, LC Real Prop 489; Re Birkin,
Heald v Millership [1949] 1 All ER 1045 at 1047 per Harman J .
2 See Sherratt v Mountford (1873) 8 Ch App 928 at 929 per James LJ . See also Sanford v Raikes (1816) I Mer 646 at
653; Doe d Preedy v Holtom (1835) 4 Ad & El 76 at 82.
3 Re Seal, Seal v Taylor [1894] 1 Ch 316 at 322-323, CA (Eng) ; Re Sykes, Skelton and Dyson v Sykes [1940] 4 All ER
10. See also Higstrim v Ray (1895) 16 NSWLR Eq 1.
4 Where the evidence may be material, it is generally admitted in the first instance, reserving the question of its materiality:
Sayer v Sayer Innes v Sayer, (1849) 7 Hare 377 at 381.
[330.080]
Plain and unambiguous gift
The evidence necessarily admitted may disclose the existence of persons or property exactly answering
the description in the will1, and show that the will contains a plain, unambiguous and effective gift.
Further, evidence is not admissible to raise an ambiguity2, or to show that the testator must have meant
some person or property different from that which his words plainly and unambiguously described3, such
as evidence of the testator's fuller knowledge of or intimacy with other persons4, or his want of
knowledge of the person so described5, or his habit of describing any other person in the same terms6;
or the state or value generally of the testator's property7, where the will itself does not make that state or
value of importance8; or his knowledge or management9, or the history10, of the property or any part of it;
or the testator's habits of describing other property in the same terms11.
Evidence (other than evidence of the testator's intention) was and is always admissible to raise a latent
ambiguity, as by showing that there exists some other subject matter to which the same word might
equally, or with a negligible variation, apply12.
Page 73
1 Horwood v Griffith (1853) 4 De GM & G 700 at 708; Millard v Bailey (1866) LR 1 Eq 378; Re Seal, Seal v Taylor [1894] 1
Ch 316 at 323; Re Trimmer, Crundwell v Trimmer (1904) 91 LT 26. As to the admissibility of evidence see generally [500]
EVIDENCE (2011 Reissue).
2 Extrinsic evidence, including evidence of the testator's intention, is also not admissible to resolve any ambiguity.
3 Shore v Wilson, Lady Hewley's Charities (1842) 9 Cl & Fin 355 at 565, HL, per Tindal CJ ; Horwood v Griffith (1853) 4
De GM & G 700 at 708 per Turner LJ .
4 Holmes v Custance (1806) 12 Ves 279; Re Williams, Gregory v Muirhead (1913) 134 LT Jo 619.
5 Re Corsellis, Freeborn v Napper [1906] 2 Ch 316.
6 Green v Howard (1779) 1 Bro CC 31 ('relations'); Ellis v Houstoun (1878) 10 Ch D 236 at 245 ('children'); Re Parker,
Bentham v Wilson (1881) 17 Ch D 262, CA (Eng) ('second cousins'); Re Fish, Ingham v Rayner [1894] 2 Ch 83, CA (Eng)
('niece').
7 Brown v Langley (1731) 2 Barn KB 118; Re Grainger, Dawson v Higgins [1900] 2 Ch 756 at 768-769, CA (Eng), per
Rigby LJ (revsd sub nom Higgins v Dawson [1902] AC 1, HL ) where, however, the question was rather of construction of
the will than of identification.
8 Such evidence may become admissible where the description are not clear in the will and are unintelligible without
receiving such evidence (A-G v Grote (1827) 2 Russ & M 699 (cited in Wigram's Extrinsic Evidence (5th Edn) 216 App II);
Hensman v Fryer (1867) 3 Ch App 420), or where the testator expressly makes the gifts by reference to the amount of his
property (Druce v Denison (1801) 6 Ves 385 at 401 explained in Re Grainger, Dawson v Higgins [1900] 2 Ch 756, CA
(Eng) ).
9 Horwood v Griffith (1853) 4 De GM & G 700. The rule applies especially to cases where the property is described by its
local description: Homer v Homer (1878) 8 Ch D 758 at 774, CA (Eng) .
10 Millard v Bailey (1866) LR1 Eq 378 (gift of shares which had been doubled or subdivided).
11 Doe d Chichester v Oxenden (1810) 3 Taunt 147; subsequent proceedings sub nom Doe d Oxenden v Chichester
(1816) 4 Dow 65, HL ('my estate of A'; evidence not admissible to show testator's habit of including outlying property in
this estate).
12 Doe d Templeman v Martin (1833) 4 B & Ad 771 at 783, where it was said that almost any evidence would be
admissible for showing an ambiguity; Grant v Grant (1870) LR 5 CP 380 (on appeal LR 5 CP 727, Ex Ch ); Re Bowman,
Bowman v Bowman (1891) 8 TLR 117; Marks v Marks (1908) 40 SCR 210. In such cases, further evidence is then
admissible to resolve the ambiguity thus disclosed: see [330.081] (evidence of surrounding circumstances), and [330.086]
(evidence of the testator's intention).
[330.081]
Gift not plain and unambiguous
Where the words of a will do not plainly and unambiguously refer to any subject, or do so only with
inaccuracy1, or where after the admission of extrinsic evidence it is seen that they refer to more than one
subject2, further evidence is then admissible in order to discover the true subject to which the words
refer3. The fact, however, that there is no person who answers the description in the will does not render
evidence that some other person was intended admissible where there are indication that the testator
made the gift in spite of his ignorance whether any such person existed4.
Where the words were plainly and unambiguously satisfied before, but not at, the date of the will, for
example, where the person described has died5 or the property described has ceased to conform to the
description6 before that date, further evidence has always been admitted to discover some other subject
existing at that date to which the words as understood by the testator may refer.
1 As to inaccuracy of descriptions generally see [330.128].
2 Miller v Travers (1832) 8 Bing 244 at 248.
3 Miller v Travers (1832) 8 Bing 244 at 247-248; Re Ray, Cant v Johnstone [1916] 1 Ch 461.
Page 74
4 Del Mare v Robello (1792) 1 Ves 412 (where a gift to the children of one sister who was a nun was not read as gift to the
children of another sister); Daubeny v Coghlan (1842) 12 Sim 507 at 518.
5 Stringer v Gardiner (1859) 4 De G & J 468; Re Halston, Ewen v Halston [1912] 1 Ch 435. See also [330.138]. As to the
doctrine of lapse see [330.062].
6 Re Jameson, King v Winn [1908] 2 Ch 111; Re Brady, Wylie v Ratcliff (1919) 147 LT Jo 235 (description of railway
stock); but cf Re Atlay, Atlay v Atlay (1912) 56 Sol Jo 444, where the evidence was treated as direct evidence of intention
and excluded.
[330.082]
Evidence of surrounding circumstances
Where the words of the will have no reasonable application to the circumstances proved, further
evidence of the surrounding circumstances is admissible to discover the meaning of the words which
give the will full effect1. In all such cases, for the purpose of determining the object of the testator's
bounty2, or the subject matter disposed of3, or the quantity of interest intended to be given4, or the other
persons and things described by the will, and the facts and circumstances there referred to, a court of
construction may, and must, inquire into every material fact relating to the person or thing said to be
identified by that description.
For this purpose, evidence is admissible to enable the court to ascertain all the persons and facts which
were known to the testator at the time when he made his will5, and thus to place itself in the testator's
position6. The court, it is said, puts itself into the testator's armchair7.
The object of admitting evidence of surrounding circumstances is not for the purpose of speculating on
what the testator's intention may have been, where no direct evidence is available, but of ascertaining
whether the circumstances by which he was surrounded afford any certain indication of his intention8.
Such evidence is not likely to be of assistance where the subject matter in dispute was not in existence
at the date of the will9, or where, on the construction of the will as whole, it appears that no gift was
intended by the words used10.
1 Doe d Hiscocks v Hiscocks (1839) 5 M & W 363 at 368; Shore v Wilson, Lady Hewley's Charities (1842) 9 Cl & Fin 355
at 566, HL, per Tindal CJ ; Re Glassington, Glassington v Follett [1906] 2 Ch 305 at 313; Re Ray, Cant v Johnstone [1916]
1 Ch 461. This proposition is not affected by Higgins v Dawson [1902] AC 1, HL ; Re Glassington, Glassington v Follett
(above) at 314.
2 Abbot v Massie (1796) 3 Ves 148 (gifts to 'W G' and 'Mrs G'); Price v Page (1799) 4 Ves 686 (Christian name left blank);
Doe d Le Chevalier v Huthwaite (1820) 3 B & Ald 632 ('to S H second son of J H', he being the third son); Lord Camoys v
Blundell (1848) 1 HL Cas 778 ('to second son of E W of L', shown by the circumstances to mean second son of J W of L);
Re Bowman, Bowman v Bowman (1891) 8 TLR 117 ('to Edmund', shown to mean Edward commonly called Edmund); Re
Waller, White v Scoles (1899) 68 LJ Ch 526, CA (Eng) ('daughters' of S shown to mean sisters of S). See also Yeap
Leong Huat v Yeap Leong Soon [1989] 3 MLJ 157, SC (bequest to male children of son by principal wife, expert witness
was admitted to explain Chinese custom with regard to Chinese customary marriage ceremony in order to establish
principal wife); Jong Chan Siong v Loh Shui Kin [1973] 1 MLJ 245, FC (testator was a Tai Poo Kheh made bequest for
benefit of his family, court accepted expert evidence that 'family' according to usage among the Tai Poo Kheh community
must be read to mean all adopted sons of the deceased).
3 Goodtitle d Radford v Southern (1813) 1 M & S 299-301; Re Glassington, Glassington v Follett [1906] 2 Ch 305 ('real
estate' where testatrix had only proceeds of sale of real estate).
4 Dashwood v Magniac [1891] 3 Ch 306 at 355, 356, 366, 372, CA (Eng) (evidence of local customs of cultivation,
including cutting of beech trees, and practice with regard to treatment of proceeds as income or capital, and rights of
limited owners). See also Chong Peng Han v Chong Toh Jin [1990] 1 MLJ 419, [1989] SLR 797 (the intention of testator
was gathered from the Chinese document which he executed on the same day as the will and the court ascertained that
the intention was to benefit the testator's grandsons from the reading of the Chinese document, they were given
unconditional right to sell the trust premises and share the proceeds).
5 For this purpose, it is the duty of personal representatives or trustees to lay before the court all relevant facts within their
knowledge: Re Herwin, Herwin v Herwin [1953] Ch 701, [1953] 2 All ER 782, CA (Eng) .
Page 75
6 Charter v Charter (1874) LR 7 HL 364 at 377 per Lord Cairns LC ; Kingsbury v Walter [1901] AC 187 at 189, HL, per
Lord Halbury LC ; Slingsby v Grainger (1859) 7 HL Cas 273 at 288 per Lord Kingsdown ; River Wear Comrs v Adamson
(1877) 2 App Cas 743 at 763-764, HL .
7 Boyes v Cook (1880) 14 Ch D 53 at 56, CA (Eng), per James LJ ; Clifford v Koe (1880) 5 App Cas 447 at 462, HL, per
Lord Hatherley ; Re Sykes, Sykes v Sykes [1909] 2 Ch 241 at 251, CA (Eng), per Farwell LJ ; Perrin v Morgan [1943] AC
399 at 420, [1943] 1 All ER 187 at 197, HL . See also Re Will of P M Framroz (decd), S F Framroz v The Chartered Bank
(M) Trustee Ltd [1972] 1 MLJ 43, [1969-1971] SLR 180, CA (Sing) ; Jong Chan Siong v Loh Shui Kin [1973] 1 MLJ 245,
FC ; Hsu Yik Chai v Hsu Yaw Tang [1982] 2 MLJ 227, FC .
8 Blackwell v Pennant (1852) 9 Hare 551 at 552 per Turner V-C .
9 Re Price, Price v Newton [1905] 2 Ch 55 at 58.
10 Re Sykes, Skelton and Dyson v Sykes [1940] 4 All ER 10.
[330.083]
Evidence of testator's knowledge and habits
The evidence of surrounding circumstances admitted in construing a will includes evidence not only of
the testator's circumstances and those of his family and affairs1, but also of his state of knowledge and
belief with regard to those circumstances. Thus, where the surname of an intended donee is omitted,
evidence is admissible of the testator's knowledge of persons having the Christian name mentioned in
the will2. Evidence of his knowledge of or friendship with the persons alleged to be donees in the will or
of the degrees of his intimacy with them3 is also admissible. On the same principle, in the case of a gift
to a charity, evidence is admissible that the testator was interested in or subscribed to a particular
charity4.
Evidence is also admissible of the testator's habits5, for example his practice of calling a certain person
by a nickname6, or other name by which he was not commonly known7, but by which he is described in
the will. Similarly with regard to a description of property which is not accurately satisfied as ordinarily
understood, evidence may be admitted of the testator's habit of dealing with certain property under that
description and of its accuracy as he understood it8.
1 Eg that the testator was to his own knowledge incapable of having further issue: Re Wohlgemuth, Public Trustee v
Wohlgemuth [1949] Ch 12, [1948] 2 All ER 882.
2 Re De Rosaz (1877) 2 PD 66.
3 King's College Hospital v Wheildon (1854) 18 Beav 30; Re Chappell [1894] P 98; Re Beale, Beale v Royal Hospital for
Incurables (1890) 6 TLR 308, CA (Eng) ; Re Jeffery, Nussey v Jeffery [1914] 1 Ch 375. In such cases the court inclines to
construe the gift as being to the person whom the testator knew best.
4 Re Briscoe's Trusts (1872) 20 WR 355. See also British Home and Hospital for Incurables v Royal Hospital for
Incurables (1904) 90 LT 601, CA (Eng) . Such evidence is not admissible where the words of the will correctly refer to one
charity, and there is no other charity that can properly be described by the same words: Wilson v Squire (1842) 1 Y & C Ch
Cas 654. See also National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention
of Cruelty to Children [1915] AC 207, HL .
5 Bernasconi v Atkinson (1853) 10 Hare 345 at 349.
6 Edge v Salisbury (1749) Amb 70 at 71; Goodinge v Goodinge (1749) 1 Ves Sen 231; Dowset v Sweet (1753) Amb 175.
7 Re Ofner, Samuel v Ofner [1909] 1 Ch 60, CA (Eng) . See also Doe d Hiscocks v Hiscocks (1839) 5 M & W 363 at 368
per Lord Abinger CB . It seems, however, that this type of evidence should not be relied on where there is sufficient
evidence of other circumstances to render the will intelligible: see Lord Camoys v Blundell (1848) 1 HL Cas 778 at 785; on
appeal sub nom Blundell v Gladstone (1844) 11 Sim 467 at 486.
8 Doe d Beach v Earl of Jersey (1825) 3 B & C 870, HL ; Ricketts v Turquand (1848) 1 HL Cas 472; Re Vear, Vear v Vear
(1917) 62 Sol Jo 159.
Page 76
[330.084]
Effect of satisfactory evidence
Where any subject of a gift is discovered which not only is within the words of the will, but exhausts the
whole of those words, then the investigation must stop; the court takes that interpretation and does not
go further1, unless it is shown that another interpretation also exhausts the words2 and that there is a
latent ambiguity, sometimes called an equivocation, arising from the circumstances.
1 Webb v Byng (1855) 1 K & J 580 at 585 per Wood V-C .
2 Sherratt v Mountford (1873) 8 Ch App 928 at 930, CA (Eng) .
[330.085]
Effect of inconclusive evidence
Where, after the admission of the evidence of the surrounding circumstances, the language of a testator
remains ambiguous or obscure, then, except in the case of a latent ambiguity, no further evidence, such
as evidence of the testator's intention, or of declarations by him as to the persons or property he meant
to include under a particular description, or of expressions of testamentary intentions in favour of
particular persons who might be so described1, or of a mistake in the description, or of a mistake in
copying the will, or otherwise, is admissible, and the gift may be void for uncertainty2. Thus, as a legacy
to a debtor is prima facie not a release to him of his debt3, extrinsic evidence is not admitted to show that
by the legacy the testator intended to release the debt4.
1 Willis v Lucas (1718) 10 Mod Rep 416 at 417; Andrews v Dobson (1788) 1 Cox Eq Cas 425; Doe d Preedy v Holtom
(1835) 4 Ad & El 76; Doe d Hiscocks v Hiscocks (1839) 5 M & W 363; Martin v Drinkwater (1840) 2 Beav 215 at 218; Doe
d Hubbard v Hubbard (1850) 15 QB 227; Douglas v Fellows (1853) Kay 114; Bernasconi v Atkinson (1853) 10 Hare 345 at
348; Drake v Drake (1860) 8 HL Cas 172 at 177; M'Clure v Evans (1861) 29 Beav 422; Sullivan v Sullivan (1870) IR 4 Eq
457 at 460; Re Ingle's Trusts (1871) LR 11 Eq 578 at 587; Farrer v St Catharine's College, Cambridge (1873) LR 16 Eq 19
at 21; Charter v Charter (1874) LR 7 HL 364 at 370, 376, 383; Baker v Ker (1882) 11 LR Ir 3 at 17; Re Taylor, Cloak v
Hammond (1886) 34 Ch D 255 at 258, CA (Eng) ; Re Whorwood, Ogle v Lord Sherborne (1887) 34 Ch D 446 at 450, CA
(Eng) ; Re Ely, Tottenham v Ely (1891) 65 LT 452; Paton v Ormerod [1892] P 247; Downe v Sheffield (1894) 71 LT 292;
Re Cheadle, Bishop v Holt [1900] 2 Ch 620 at 624, CA (Eng) ; Re Chenoweth, Ward v Dwelley (1901) 17 TLR 515;
M'Hugh v M'Hugh [1908] 1 IR 155 at 159.
2 Dowset v Sweet (1753) Amb 175; Thomas d Evans v Thomas (1796) 6 Term Rep 671; Doe d Hayter v Joinville (1802) 3
East 172; Richardson v Watson (1833) 4 B & Ad 787; Drake v Drake (1860) 8 HL Cas 172; Re Stephenson, Donaldson v
Bamber [1897] 1 Ch 75, CA (Eng) . A charitable gift may not be void, but may be administered by means of a scheme: Re
Clergy Society (1856) 2 K & J 615; Re Bateman, Wallace v Mawdsley (1911) 27 TLR 313.
3 Re Tinline, Elder v Tinline (1912) 56 Sol Jo 310.
4 Re Tinline, Elder v Tinline (1912) 56 Sol Jo 310. See also Selwin v Brown (1735) 3 Bro Parl Cas 607, HL . Such
evidence may be admitted, however, not to show intention, but to show some extraneous act constituting a release apart
from the will: Cross v Sprigg (1849) 6 Hare 552 (on appeal (1850) 2 Mac G 113); Peace v Hains (1853) 11 Hare 151 at
154.
[330.086]
Meaning of 'latent ambiguity' and 'patent ambiguity'
A latent ambiguity arises when the description in the will, considered in the light of the context, is on the
Page 77
face of it apt to describe and determine, without obscurity at the time when the subject is to be
ascertained1, any of two or more different subjects, either accurately, or subject to inaccuracies such as
blanks left in the description, or words which have to be rejected as a false description not applying to
any one2, or which are otherwise negligible3. Where the donee is described by a Christian name, and
there are found two persons, one having that name only and the other having that name with others,
both are treated as answering the description in the will with sufficient accuracy, and a latent ambiguity
arises4. A latent ambiguity does not arise where part of the description applies to one subject and
another part to another subject5; or where from the context of the whole will6 or by the aid of any rule of
construction applicable to the will, such as the presumption as to repeated words7 or as to legitimacy8, or
from the circumstances of the case properly admissible in evidence9, it can be gathered which of the
different subjects was intended.
A latent ambiguity must be distinguished from a patent ambiguity, which arises where the description is
on the face of it indefinite and insufficiently clear to determine any subject, for example where there is a
gift to 'one of the sons' of a named person who has more than one son10. In construing the will of a
testator, no evidence is admissible to resolve a patent ambiguity11.
1 As to the rules of construction relating to the time for ascertaining the property given see [330.141] and as to the time for
ascertaining the donee see [330.153] and following. Where a donee is described by name, and there has been a person in
existence known to the testator answering to the exact description of the donee, while at the date of the will or of the death
of the testator there is no such person, extrinsic evidence is admissible to prove not only the testator's intimacy with a
person who exists to whom a sufficient part of the description is applicable, but even his intention to make the gift to that
person: Re Halston, Ewen v Halston [1912] 1 Ch 435, not following Re Ely, Tottenham v Ely (1891) 65 LT 452 (which had
been disapproved by Farwell LJ in Re Ofner, Samuel v Ofner [1909] 1 Ch 60 at 63, CA (Eng) ), and applying Re Blackman
(1852) 16 Beav 377. In Re Ely, Tottenham v Ely (1891) 65 LT 452, the evidence relied on merely went to prove intention,
and was held inadmissible as such: see Re Loughlin, Acheson v O'Meara [1906] VLR 597 at 601-603 (where Re Ely,
Tottenham v Ely (1891) 65 LT 452 is explained).
2 Price v Page (1799) 4 Ves 680; Careless v Careless (1816) 1 Mer 384 ('to Robert C my nephew the son of Joseph C',
the testator having two nephews Robert, and no brother Joseph); Still v Hoste (1821) 6 Madd 192 (name wrong). These
three cases were explained in Doe d Hiscocks v Hiscocks (1839) 5 M & W 363 at 370 per Lord Abinger CB as cases
where the inaccurate part of the description was either a mere blank or applicable to no person at all. See also Garner v
Garner (1860) 29 Beav 114 (a settlement on 'J G of S and E his wife', there being a J G of B whose wife's name was E a
niece of the settlor, and a J G of S, whose wife was H); Re Hubbuck [1905] P 129 ('my granddaughter', there being three);
Re Ray, Cant v Johnstone [1916] 1 Ch 461; Re Brady, Wylie v Ratcliff (1919) 147 LT Jo 235; Re Gowenlock, Public
Trustee v Gowenlock (1934) 177 LT Jo 95.
3 Henderson v Henderson [1905] 1 IR 353.
4 Bennett v Marshall (1856) 2 K & J 740; Re Wolverton Mortgaged Estates (1877) 7 Ch D 197 at 199 (where, however, the
decision is also sufficiently grounded on evidence of surrounding circumstances). See also Re Halston, Ewen v Halston
[1912] 1 Ch 435.
5 Doe d Hiscocks v Hiscocks (1839) 5 M & W 363; Bernasconi v Atkinson (1853) 10 Hare 345 at 348-349; Re Chappell
[1894] P 98. In Re Brake (1881) 6 PD 217, the evidence of intention was not relied upon.
6 Doe d Westlake v Westlake (1820) 4 B & Ald 57 (to 'M W my brother and S W my brother's son', there being two persons
S W, sons of the testator's brothers).
7 Webber v Corbett (1873) LR 16 Eq 515. See also [330.108]. Cf Healy v Healy (1875) IR 9 Eq 418. In Doe d Morgan v
Morgan (1832) 1 Cr & M 235, a similar case, this presumption was not alluded to, and evidence of intention was admitted;
and in Phelan v Slattery (1887) 19 LR Ir 177, the presumption was excluded by the context, and evidence of intention was
admitted.
8 Re Fish, Ingham v Rayner [1894] 2 Ch 83, CA (Eng) , distinguished in Re Jackson, Beattie v Murphy [1933] Ch 237
(where a latent ambiguity arose because two legitimate persons both satisfied the description and, extrinsic evidence
being then admitted, it could extend to the claim of an illegitimate person). In Re Ashton [1892] P 83 this presumption was
excluded by the terms of the will. As to the presumption as to legitimacy see [330.190]. See also Grant v Grant (1870) LR
5 CP 380 (on appeal LR 5 CP 727, Ex Ch ), where the devise was to 'my nephew J G', and the testator had both a nephew
and a nephew by affinity of that name, evidence was held admissible to show the relation in which they respectively stood
to the testator, and that he did not know of the existence of the former, but the question of the admissibility of evidence of
intention was not decided. In Wells v Wells (1874) LR 18 Eq 504 at 506 per Jessel MR , and in Merrill v Morton (1881) 17
Ch D 382 at 386 per Malins V-C , the decision in Grant v Grant (1870) LR 5 CP 380 (on appeal LR 5 CP 727, Ex Ch ) was
dissented from on the ground that 'nephew' in its ordinary meaning includes only a nephew by consanguinity.
9 Douglas v Fellows (1853) Kay 114 at 120 per Wood V-C , citing Fox v Collins (1761) 2 Eden 107 (bequest to 'the said A
Page 78
C', there being two of the name mentioned in the will); Re Cheadle, Bishop v Holt [1900] 2 Ch 620, CA (Eng) (bequest of
'my 140 shares', where testatrix had 240 partly and 40 fully paid up).
10 The fact that the ambiguity appears on the face of the will, as where the two persons who may answer the description
are both named in the will, does not prevent the ambiguity from being latent for this purpose: Doe d Gord v Needs (1836) 2
M & W 129 at 141, following Doe d Morgan v Morgan (1832) 1 Cr & M 235.
11 Sir Litton Strode v Lady Russel and Lady Falkland (1707) 2 Vern 621 at 624 per Tracy J .
[330.087]
Evidence admissible in cases of ambiguity
Where there is a latent ambiguity in the description of some person or thing, and evidence of the
surrounding circumstances is insufficient to resolve the ambiguity, then, as a last resort1, evidence is
admissible to prove the testator's declarations of his intention as to which of the persons and things so
described was meant by him2. Such declarations need not be contemporaneous with the will, but may be
of prior or later date, and may have more or less weight according to the time and circumstances under
which they were made3.
If no such evidence is available, the uncertainty cannot be removed and the gift is void for uncertainty4.
1 Healy v Healy (1875) IR 9 Eq 418 at 421 per Sullivan MR .
2 Jones v Newman (1750) 1 Wm Bl 60; Doe d Morgan v Morgan (1832) 1 Cr & M 235; Doe d Gord v Needs (1836) 2 M &
W 129; Fleming v Fleming (1862) 1 H & C 242; Phelan v Slattery (1887) 19 LR Ir 177; Re Ray, Cant v Johnstone [1916] 1
Ch 461; Robertson v Flynn [1920] 1 IR 78, CA (Ir) (instructions for will looked at); Re Cruse, Gass v Ingham [1930] WN
206.
3 Doe d Allen v Allen (1840) 12 Ad & El 451 at 455. See also Dwyer v Lysaght (1812) 2 Ball & B 156 at 162; Langham v
Sanford (1816) 19 Ves 641 at 649-650 per Lord Eldon LC .
4 Re Jackson, Beattie v Murphy [1933] Ch 237 at 242.

Page 79
Administration and Succession/(1) Wills/(3) Construction by the Court/ B. Admissibility of Evidence/ (iv)
Evidence of Secret Trusts
(iv) Evidence of Secret Trusts
[330.088]
Evidence of secret trusts
In certain cases evidence is admissible to prove matters not disclosed by the will that are binding on a
donee under an express or implied undertaking on his part made with the testator. In such cases
evidence is admitted, not to show the testator's intention, but to prove the existence of an obligation, in
the nature of a trust, accepted by and binding on the donee1. Historically such evidence was only
admitted to prevent fraud on the donee's part2, but nowadays fraud is not an essential characteristic, and
where actual fraud is not present, the standard of proof required is no more than the ordinary civil
standard of proof required for the establishment of an ordinary trust3. Such evidence is admissible even
though the will expressly states that the gift is to the donees beneficially4, but where on the construction
of the will the gift is a fiduciary one, no evidence is admissible to show that the donee takes any part of
the gift beneficially5.
If the evidence discloses a secret trust, the beneficiaries take under that trust and not under the will6;
accordingly, the trust does not fail merely because the beneficiary under it is an attesting witness to the
will7, or predeceases the testator8.
1 Re Spencer's Will (1887) 57 LT 519 at 521, CA (Eng) . The test in such cases is to consider the case as unaffected by
the Wills Act 1837 (UK), which is the corresponding English statute of the Wills Act 1959 (Act 346), and then to inquire
whether a trust or obligation has been imposed by the testator and accepted by the donee such as a court of equity would
enforce: Jones v Badley (1868) 3 Ch App 362 at 364, CA (Eng), per Lord Cairns LC .
2 McCormick v Grogan (1869) LR 4 HL 82 at 89-97; Re Stead, Witham v Andrew [1900] 1 Ch 237; Re Pitt Rivers, Scott v
Pitt Rivers [1902] 1 Ch 403 at 407, CA (Eng), per Vaughan Williams LJ ; Tharp v Tharp [1916] 1 Ch 142; Re Snowden,
Smith v Spowage [1979] Ch 528, [1979] 2 All ER 172.
3 Re Snowden Smith v Spowage [1979] Ch 528, [1979] 2 All ER 172, not following Ottaway v Norman [1972] Ch 698,
[1971] 2 All ER 1325 on this point.
4 Russell v Jackson (1852) 10 Hare 204; Re Spencer's Will (1887) 57 LT 519, CA (Eng) .
5 Re Rees, Williams v Hopkins [1950] Ch 204, [1949] 2 All ER 1003; Re Karsten, Edwards v Moore [1953] NZLR 456; Re
Pugh's Will Trusts, Marten v Pugh [1967] 3 All ER 337, [1967] 1 WLR 1262.
6 O'Brien v Condon [1905] 1 IR 51; Re Young, Young v Young [1951] Ch 344 at 351, [1950] 2 All ER 1245 at 1251. See
also Culen v A-G for Ireland (1866) 1 HL 190 at 198. For the purpose of administration, however, property comprised in a
secret trust may fall to be treated in the same manner as if it had been included in a specific bequest in the will: Re
Maddock, Llewellyn v Washington [1902] 2 Ch 220, CA (Eng) .
7 Re Young, Young v Young [1951] Ch 344, [1950] 2 All ER 1245, not following Re Fleetwood (1880) 15 Ch D 594 on this
point. See also O'Brien v Condon [1905] 1 IR 51. As the person named in the will as legatee takes no beneficial interest by
reason of the existence of the trust, the legacy is not invalidated under the Wills Act 1837 (UK) s 15 (the corresponding
provision is in the Malaysian Wills Act 1959 (Act 346) s 9) by his attesting the will: see Re Ray's Will Trusts, Re Ray's
Estate, Public Trustee v Barry [1936] Ch 520, [1936] 2 All ER 93.
8 Re Gardner, Huey v Cunningham [1923] 2 Ch 230. As to the effect of the trustee predeceasing the testator see Re
Maddock, Llewellyn v Washington [1902] 2 Ch 220, CA (Eng) .
Page 80
[330.089]
Fully secret trusts
Where on the face of the will the gift is an absolute one1, but it can be proved2 that either before3 or
after4 the date of the will, but during the testator's lifetime5, the donee received from the testator a
communication of certain trusts or conditions to be attached to the gift6 and to be binding on the donee7,
and that the donee accepted the gift on those trusts and conditions, either by his express agreement or
by his silence8, and thereby induced the testator to make the gift, or to leave the gift already made
unrevoked, then evidence of those trusts or conditions is admissible, except in so far as such evidence
would not contradict the will9.
1 Burney v Macdonald (1845) 15 Sim 6; Russell v Jackson (1852) 10 Hare 204; Re Spencer's Will (1887) 57 LT 519, CA
(Eng) .
2 The proof may consist of an admission by the donee (Re Maddock, Llewellyn v Washington [1902] 2 Ch 220, CA (Eng) ;
Re Huxtable, Huxtable v Crawfurd [1902] 2 Ch 793, CA (Eng) ) or evidence from another source (Podmore v Gunning
(1836) 7 Sim 644), but it must prove acceptance of the trust by the donee (French v French [1902] 1 IR 172, HL ); Le Page
v Gardom (1915) 84 LJ Ch 749, HL ; Re Gardner, Huey v Cunnington [1920] 2 Ch 532, CA (Eng) ; Re Pitt Rivers, Scott v
Pitt Rivers [1902] 1 Ch 403; and see Re Crawshay, Crawshay v Crawshay (1890) 43 Ch D 615 at 625.
3 Re Applebee, Leveson v Beales [1891] 3 Ch 422 at 430-431.
4 Moss v Cooper (1861) 1 John & H 352 at 366 per Wood V-C ('a bargain before the will is not at all essential'). Cf Wekett
v Raby (1724) 2 Bro Parl Cas 386, HL ; Morrison v M' Feran [1901] 1 LR 360; French v French [1902] 1 IR 230; Re
Gardner, Huey v Cunnington [1920] 2 Ch 523 at 532.
5 Communication after his death is not sufficient: Re Boyes, Boyes v Carritt (1884) 26 Ch D 531; Re Shields,
Corbould-Ellis v Dales [1912] 1 Ch 591; Re Louis, Louis v Treloar (1916) 32 TLR 313.
6 The method by which the testator's intention are to be carried out is not material: see Ottaway v Norman [1972] Ch 698,
[1971] 3 All ER 1325 (donee to make will in favour of another).
7 For cases where the communications were not intended to be binding see Podmore v Gunning (1836) 7 Sim 644; Re Pitt
Rivers, Scott v Pitt Rivers [1902] 1 Ch 403, CA (Eng) ; Re Falkiner, Mead v Smith [1924] 1 Ch 88; Re Barton, Barton v
Bourne (1932) 48 TLR 205; Re Stirling, Union Bank of Scotland Ltd v Stirling [1954] 2 All ER 113, [1954] 1 WLR 763; Re
Snowden, Smith v Spowage [1979] Ch 528, [1979] 2 All ER 172.
8 The acceptance may be made expressly or silently, as where the donee does not dissent on the communication being
made to him: see Russell v Jackson (1852) 10 Hare 204; Moss v Cooper (1861) 1 John & H 352 at 370-371. In the latter
case, however, the evidence of acceptance must leave no doubt in the mind of the court: French v French [1902] 1 IR 172
at 213, HL ; Re Williams, Williams v All Souls, Hastings (Parochial Church Council) [1933] Ch 244.
9 Re Huxtable, Huxtable v Crawford [1902] 2 Ch 793, CA (Eng) ; Re Ellis, Owen v Bentley (1918) 53 1LT 6; Re Keen,
Evershed v Griffiths [1937] Ch 236 at 247, [1937] 1 All ER 452 at 459, CA (Eng) . See generally [310] TRUSTS (2015
Reissue).
[330.090]
Partly secret trusts
Where on the construction of a will a gift to a donee is not absolute, but subject to trusts or conditions
which are not disclosed by the will1, evidence of the trusts or conditions is admissible only if they were
declared and communicated to the trustee (or to one at least of the trustees where there are several2)
and accepted by him before or at the execution of the will3. Where by a subsequent will or codicil the
testator increases a legacy which is already bound by a secret trust, but does not before executing the
subsequent will or codicil communicate the increase to the trustee, the trust is valid as to the amount of
the original legacy only4.
Page 81
1 Blackwell v Blackwell [1929] AC 318, HL . The trusts must be contained in some document in existence at the date of the
will, or be declared orally and accepted by the trustee before or at the date of the will: Crook v Brooking (1688) 2 Vern 50,
106; Pring v Pring (1689) 2 Vern 99; Smith v Attersoll (1826) 1 Russ 266; Re Fleetwood, Sidgreaves v Brewer (1880) 15
Ch D 594; Re Huxtable, Huxtable v Crawfurd [1902] 2 Ch 793, CA (Eng) ; Re Ellis, Owen v Bentley (1918) 53 ILT 6. See
also Johnson v Ball (1851) 5 De G & Sm 85 (explained in Re Fleetwood, Sidgreaves v Brewer (1880) 15 Ch D 594 at
603-604), and the text and note 3 below.
2 See Re Gardom, Le Page v A-G [1914] 1 Ch 622 at 673.
3 Re Keen, Evershed v Griffiths [1937] Ch 236, [1937] 1 All ER 452, CA (Eng) . See also Johnson v Ball (1851) 5 De G &
Sm 85; Scott v Brownrigg (1881) 9 LR Ir 246 at 261; Re Boyes (1884) 26 Ch D 531 at 535; Balfe v Halpenny [1904] 1 IR
486; Re Karsten, Edwards v Moore [1953] NZLR 456; Re Bateman's Will Trusts, Brierley v Perry [1970] 3 All ER 817,
[1970] 1 WLR 1463. Cf Re Hawksley's Settlement, Black v Tidy [1934] Ch 384 at 399. See TRUSTS (2015 Reissue)
[310.071].
4 Re Cooper, Le Neve Foster v National Provincial Bank Ltd [1939] Ch 811, [1939] 3 All ER 586, CA (Eng) . See also
TRUSTS (2015 Reissue) [310.076].
Page 82
Administration and Succession/(1) Wills/(3) Construction by the Court/ C. Principles of Construction/ (i) In
General/ (A) Ascertainment of Intention
C. PRINCIPLES OF CONSTRUCTION
(i) In General
(A) Ascertainment of Intention
[330.091]
Leading principle of construction
The only principle of construction which is applicable without qualification to all wills1 and overrides
every other rule of construction is that the testator's intention is collected from a consideration of the
whole will2 taken in connection with any evidence properly admissible3, and the meaning of the will and
of every part of it is determined according to that intention4.
For this purpose, the will and all the codicils to it are construed together as one testamentary
disposition5, but not as one document6, and the testator's intention is gathered from the whole
disposition7. Where two properties are given by the will on similar limitations, a variation of the
limitations by a codicil in respect of one property only will not affect the gift of the other8, unless it
appears that the testator intended the two properties to be united9. Where no such intention appears, it
is not to be inferred from the fact that, under the will, the two properties were devised on similar
limitations10.
The testator's intention, as expressed in the will, may be overridden by statutory provisions that affect
the property11.
1 In practice, the rule that is applied first is the rule as to giving words their ordinary meaning (see Roddy v Fitzgerald
(1858) 6 HL Cas 823 at 876; Gorringe v Mahlstedt [1907] AC 225 at 227, HL ; and [330.101]), but there are restrictions
on that rule (see [330.101] note 3).
2 Baddeley v Leppingwell (1764) 3 Burr 1533 at 1541; Thellusson v Woodford Woodford v Thellusson, (1799) 4 Ves
227 at 329; Martin v Lee (1861) 14 Moo PCC 142 at 153; Crumpe v Crumpe [1900] AC 127 at 130-132, HL . In Aitken's
Trustees v Aitken 1970 SC 28 at 35, HL , Lord Upjohn held that the duty of the courts is 'to give effect to the intentions of
the testator by construing his language, however imperfect or inelegant it may be, robustly and in a common sense way,
trying, so far as is possible, to mould his language so as to do as little violence to it as possible'.
3 Stanley v Stanley (1862) 2 John & H 491 at 513; Re Cozens, Miles v Wilson [1903] 1 Ch 138 at 143.
4 Manning's Case (1609) 8 Co Rep 94b at 95b ('the intention of the devisor expressed in his will is the best expositor,
director, and disposer of his words'); Doe d Long v Laming (1760) 2 Burr 1100 at 1112. The statement that 'a testator
only means what he says in express words' (Bent v Cullen (1871) 6 Ch App 235 at 239 per Lord Hatherley ) seems to go
rather too far. As to the general rule relating to intention see [330.070]. The intention, when legitimately proved, is
competent not only to fix the sense of ambiguous words but also to control the sense even of clear words and to supply
the place of express words, in cases of difficulty or ambiguity (Re Haygarth, Wickham v Haygarth [1913] 2 Ch 9 at 15 per
Joyce J (citing Hawkins on Wills (2nd Edn) 6); Re Patterson, Dunlop v Greer [1899] 1 IR 324), but nothing is more
fallacious than endeavouring first of all to find out the testator's intention and then to construe the words of the will with
reference to that supposed intention (Taaffe v Conmee (1862) 10 HL Cas 64 at 85 per Lord Cranworth ).
5 Phipps v Earl of Anglesey (1751) 7 Bro Parl Cas 443 at 452, HL ; Crosbie v Macdoual (1799) 4 Ves 610; Darley v
Martin (1853) 13 CB 683; Green v Tribe (1878) 9 Ch D 231; Re Wilcock, Kay v Dewhirst [1898] 1 Ch 95; Morley v
Rennoldson [1895] 1 Ch 449, CA (Eng) ; Re Hardyman, Teesdale v McClintock [1925] Ch 287. See also Choa Eng Wan
v Choa Giang Tee [1923] AC 469 at 473, PC . As to identifying a will referred to in a codicil as a 'former will' see Re
Page 83
White, Knight v Briggs [1925] Ch 179. An improperly attested codicil may, if necessary, be referred to: Green v Marsden
(1853) 1 Drew 646. As to construing the will and codicils together see [330.073].
6 A codicil is not, as a general rule, to be taken as part of the will for all intents and purposes (Re Towry's Settled Estate,
Dallas v Towry (1889) 41 Ch D 64 at 74, CA (Eng) ), and legacies given by a codicil might not be free of tax like legacies
given by the will (Re Trinder, Sheppard v Prance (1911) 56 Sol Jo 74; but see Crosbie v Macdoual (1799) 4 Ves 610 at
616). On the construction of the will and codicils taken together, the words 'this my will' refer to the testamentary
disposition constituted by the will and codicils at the testator's death: Re Smith, Prada v Vandroy [1916] 2 Ch 368, CA
(Eng) , disapproving Bonner v Bonner (1807) 13 Ves 379 and Henwood v Overend (1815) 1 Mer 23.
7 The same principles apply to the construction of a codicil as of a will. As to legacies given by a codicil in addition to or
substitution for those given by a will see [330.216]-[330.218].
8 Martineau v Briggs (1875) 45 LJ Ch 674, 23 WR 889, HL .
9 Lord Carrington v Payne (1800) 5 Ves 404; Re Towry's Settled Estate, Dallas v Towry (1889) 41 Ch D 64, CA (Eng) .
10 Martineau v Briggs (1875) 45 LJ Ch 674, 23 WR 889, HL . See also Re Bund, Cruikshank v Willis [1929] 2 Ch 455. As
to the effect of such dispositions in a will and a subsequent disposition of one property by deed see Re Whitburn,
Whitburn v Christie [1923] 1 Ch 332.
11 For example the provisions of the Inheritance (Family Provision) Act 1971 (Act 39).
[330.092]
Meaning of words used
For the purpose of ascertaining the intention, the will is read, in the first place, without reference or
regard to the consequences of any rule of law or of construction1. The words of the will are given that
meaning which is rendered necessary in the circumstances of the case by the context of the whole
will2, the particular passage conferred being taken together with whatever is relevant in the rest of the
will to explain it3. The will itself is taken as the dictionary from which the meaning of the words is
ascertained4, however inaccurate that meaning would be in ordinary legal use5. Relative terms such as
'residue'6 or 'survivor'7, and other terms needing a context to make them intelligible, may be explained
only by the context8.
1 Hodgson v Ambrose (1780) 1 Doug KB 337 at 341; Earl of Scarborough v Doe d Savile (1836) 3 Ad & El 897 at 963,
Ex Ch ; De Beauvoir v De Beauvoir (1852) 3 HL Cas 524 at 545 per Lord St Leonards LC ; Macpherson v Stewart (1858)
28 LJ Ch 177; Green v Gascoyne (1865) 4 De GJ & Sm 565 at 569; Re Parker, Parker v Osborne [1897] 2 Ch 208 at
213; Aplin v Stone [1904] 1 Ch 543; Comiskey v Bowring-Hanbury [1905] AC 84 at 89, HL ; Edwards v Edwards [1909]
AC 275 at 277, HL . The rules of law are applied to the intention thus collected in order to see whether the court is at
liberty to carry that intention into effect: De Beauvoir v De Beauvoir (above).
2 Towns v Wentworth (1858) 11 Moo PCC 526 at 543; Seale-Hayne v Jodrell [1891] AC 304 at 306, HL ; Re Pinhorne,
Moreton v Hughes [1894] 2 Ch 276 at 278; King v Rymill (1898) 67 LJ PC 107.
3 Higgins v Dawson [1902] AC 1 at 3-4, HL, per Lord Halsbury LC . See also Jenkins v Hughes (1860) 8 HL Cas 571 at
588. A void limitation may be referred to in explanation of the testator's intention: Martin v Martin (1866) LR 2 Eq 404 at
411 (see [330.105]); Re Wright, Mott v Issott [1907] 1 Ch 231. It has been suggested, however, that less weight may be
given to an indication in an inoperative clause: Re Watkins, Maybery v Lightfoot (1913)108 LT 237 at 239, CA (Eng)
(revsd sub nom Lightfoot v Maybery [1914] AC 782, HL ), as explained in Re Johnson, Pitt v Johnson (1913) 30 TLR
200; affd (1914) 30 TLR 505, CA (Eng) .
4 Hill v Crook (1873) LR 6 HL 265 at 285 per Lord Cairns (followed in Re Horner, Eagleton v Horner (1887) 37 Ch D 695
at 703); Re Jodrell, Jodrell v Seale (1890) 44 Ch D 590 at 606, CA (Eng) (affd sub nom Seale-Hayne v Jodrell [1891] AC
304, HL ); Re Parker, Parker v Osborne [1897] 2 Ch 208 at 213; Re Birks, Kenyon v Birks [1900] 1 Ch 417 at 419, CA
(Eng) ; Re Wood, Wood v Wood [1902] 2 Ch 542 at 546, CA (Eng) ; Re Kiddle, Gent v Kiddle (1905) 92 LT 724 at 725;
Re Lynch, Lynch v Lynch [1943] 1 All ER 168.
5 Wigram's Extrinsic Evidence (5th Edn) 16-34. The only qualification to this principle is that a clear context is required in
order to exclude the ordinary meaning of a word: Towns v Wentworth (1858) 11 Moo PCC 526 at 543; Singleton v
Tomlinson (1878) 3 App Cas 404 at 418; Higgins v Dawson [1902] AC 1, HL .
Page 84
6 Singleton v Tomlinson (1878) 3 App Cas 404 at 418; Higgins v Dawson [1902] AC 1, HL .
7 Inderwick v Tatchell [1903] AC 120 at 123, HL . See also [330.168]-[330.171].
8 As to evidence in such cases see [330.073]. The expression 'subject thereto' does not necessarily refer only to what
has gone before; its effect must be discovered by an examination of the whole scheme of the will: Re Colvile, Colvile v
Martin (1911) 105 LT 622.
[330.093]
Effect where words are ambiguous in context
Where a context is found which is sufficient to control the meaning of the words, but the words in that
context are ambiguous, contradictory or obscure, or where the words have no special meaning given
them by the context, and have two or more meanings in ordinary use, the court adopts that construction
which it considers most likely that, in the circumstances, the testator meant by the words of the will1,
taking into account the general scope of the will and his general purpose2. Such considerations are,
however, permissible only where it is a question of choice between two possible interpretations3; they
are not legitimate where the normal meaning of the words offers no difficulty4.
The construction is not decided on mere conjecture or belief5, but on judicial persuasion6 of what is the
testator's intention, either expressly declared or collected by just reasoning on the words of the will or
evidenced by the surrounding circumstances where they can be called in aid7.
1 See Key v Key (1853) 4 De G M & G 73 at 84; Tunaley v Roch (1857) 3 Drew 720 at 724-725; Re Doland's Will Trusts,
Westminster Bank Ltd v Phillips [1970] Ch 267, [1969] 3 All ER 713. Where in a gift there are two sets of technical words,
and their technical meanings cannot with consistency be given to both sets, so that 'something has to be sacrificed, it is
to be seen what is the least sacrifice to be made, and what will best effectuate the intention of the testator': Ashton v
Adamson (1841) 1 Dr & War 198 at 208 per Sugden LC .
2 Blamford v Blamford (1615) 3 Bulst 98 at 103; Mellish v Mellish (1798) 4 Ves 45 at 50; Coard v Holderness (1855) 20
Beav 147 at 152-156; Prescott v Barker (1874) 9 Ch App 174 at 187; Re Whiteley, Bishop of London v Whiteley [1910] 1
Ch 600. See also Re Macandrew's Will Trusts, Stephens v Barclays Bank Ltd [1964] Ch 704, [1963] 2 All ER 919 (where
the words 'or widow' being senseless, they were deemed placed in parenthesis and read as indicating a gift over subject
to her interest). As to this rule in the construction of executory trusts, where the testator has not been his own
conveyancer see Sackville-West v Viscount Holmesdale (1870) LR 4 HL 543 at 559, 569, 572.
3 Giles v Melsom (1873) LR 6 HL 24 at 31 per Lord Selborne LC ; Gibbons v Gibbons (1881) 6 App Cas 471 at 481, PC ;
Re Boden, Boden v Boden [1907] 1 Ch 132 at 145, CA (Eng), per Fletcher Moulton LJ .
4 See eg Mitchell's Trustees v Aspin 1971 SLT 166, HL . An exception exists, perhaps, in an extreme case where the
language of the will, according to its normal meaning, is of so extravagant and fantastic a nature that the court is forced
to conclude that it does not represent the testator's true intention: Re Boden, Boden v Boden [1907] 1 Ch 132 at 145, CA
(Eng), per Fletcher Moulton LJ .
5 Foley v Burnell (1783) 1 Bro CC 274 at 284; Barksdale v Gilliat (1818) 1 Swan 562 at 565; Morrall v Sutton (1845) 1 Ph
533 at 540-541; Re Elliot, Kelly v Elliot [1896] 2 Ch 353 at 356; Inderwick v Tatchell [1903] AC 120 at 122, HL ; Walford v
Walford [1912] AC 658 at 664, HL .
6 A-G v Grote (1827) 2 Russ & M 699 at 700.
7 Doe d Brodbelt v Thomson (1858) 12 Moo PCC 116 at 127 per Turner LJ . See also Lady Langdale v Briggs (1856) 8
De G M & G 391 at 429-430. As to the evidence admissible see [330.073] and [330.074].
[330.094]
Rule in Lassence v Tierney

Page 85
A rule frequently applicable is the rule, usually referred to as the rule in Lassence v Tierney1, that
where the will contains an absolute gift to a donee in the first instance2, and trusts are engrafted or
imposed on the absolute interest3 which fail, either for lapse or invalidity or any other reason, then the
absolute gift takes effect, so far as the trusts have failed, to the exclusion of the residuary donee or
persons entitled on intestacy, as the case may be4. The rule applies both where the original gift is to
trustees upon trust for the legatee absolutely and where the original gift is to the legatee direct, if the
legacy is effectually segregated from the testator's estate5. The rule may apply twice in one will and
operate on original shares and also on accruing shares6.
1 See Lassence v Tierney (1849) 1 Mac & G 551. See also A-G v Lloyds Bank Ltd [1935] AC 382 at 394, HL ; Re Gatti's
Voluntary Settlement Trusts, De Ville v Gatti [1936] 2 All ER 1489; Fyfe v Irwin [1939] 2 All ER 271, HL . The rule applies
to real estate as well as to personalty: Moryoseph v Moryoseph [1920] 2 Ch 33.
2 See McKenna v McCarten [1915] 1 IR 282; Re Cohen, Cohen v Cohen (1915) 60 Sol Jo 239. For examples where the
rule could not be applied for want of an absolute gift in the first instance see Scawin v Watson (1847) 10 Beau 200;
Licensee v Tierney (1849) 1 Mac & G 551; Re Corbett's Trusts (1860) John 591; Savage v Tyres (1872) 7 Ch App 356;
Re Orr, M'Dermott v Anderson [1915] 1 IR 191; Re Cohen's Will Trusts, Cullen v Westminster Bank Ltd [1936] 1 All ER
103; Re Drought's Will Trusts, Public Trustee v Palmer (1967) 101 ILTR 1 (Eire SC); Re Goold's Will Trusts, Lloyds Bank
Ltd v Goold [1967] 3 All ER 652. See also Re Atkinson's Will Trust, Prescott v Child [1957] Ch 117, [1956] 3 All ER 738.
3 This must be distinguished from a clause not merely modifying the enjoyment under the absolute gift, but diminishing
that estate or totally substituting a new gift: Gompertz v Gompertz (1846) 2 Ph 107; Lassence v Tierney (1849) 1 Mac &
G 551 at 561; Re Richards, Williams v Gorvin (1883) 50 LT 22 at 23; Re Wilcock, Kay v Dewhirst [1898] I Ch 95 at
98-99.
4 Hancock v Watson [1902] AC 14 at 22 per Lord Davey . See also Lassence v Tierney (1849) 1 Mac & G 551 at 561.
For applications of the rule see Whittell v Dudin (1820) 2 Jac & W 279; Hulme v Hulme (1839) 9 Sim 644; Mayer v
Townsend (1841) 3 Beav 443; Campbell v Brownrigg (1843) 1 Ph 301; Ridgway v Woodhouse (1844) 7 Beav 437; Kellett
v Kellett (1868) LR 3 HL 160; Bradford v Young (1885) 29 Ch D 617, CA (Eng) ; FitzGibbon v M'Neill [1908] 1 IR 1; Re
Currie's Settlement, Re Rooper, Rooper v Williams [1910] 1 Ch 329 at 334; Hughes v McNaull [1923] 1 IR 78, CA (Ir) ;
Re Atkinson, Atkinson v Weightman [1925] WN 30, CA (Eng) ; Re Marshall, Graham v Marshall [1928] Ch 661
(distinguishing Re Payne, Taylor v Payne [1927] 2 Ch 1, where the rule was held not to apply); Re Atkinson's Will Trust,
Prescott v Child [1957] Ch 177, [1956] 3 All ER 738; Re Leek, Darwen v Leek [1969] 1 Ch 563, [1968] 1 All ER 793, CA
(Eng) . See also Re Burton's Settlement Trusts, Public Trustee v Montefiore [1955] Ch 348, [1955] 1 All ER 433, CA
(Eng) . The rule does not apply to a gift subject to an independent gift over which fails: Robinson v Wood (1858) 4 Jur NS
625, following Doe d Blomfield v Eyre (1848) 5 CB 713 at 746, Ex Ch .
5 Re Connell's Settlement, Re Benett's Trusts, Fair v Connell [1915] 1 Ch 867; Re Harrison, Hunter v Bush [1918] 2 Ch
59.
6 Re Litt, Parry v Cooper [1946] Ch 154, [1946] 1 All ER 314, CA (Eng) .
[330.095]
Inconsistent gifts
Where in the same will1 there are two inconsistent gifts, the court first attempts to reconcile the
successive provisions without unduly straining the language, and to make the whole consistent with the
apparent general intention of the testator2. Where the two gifts are irreconcilable and the court can find
nothing else to assist in determining the question3, the later clause prevails as being the last expression
of the testator's wishes4.
The rule that the later gift prevails is only used as a last resort when all attempts to reconcile the
various provisions of the will have failed5, and is subject to the rule that a prior gift should not be
disturbed further than is necessary for the purpose of giving effect to the later dispositions6.
Accordingly, if there are two absolute gifts, one of all the testator's property or all his property of a
certain description, and the other of portions of that property, the more general gift is confined to the
residue of that property7, and, if there is a clear and unambiguous gift, and a subsequent clause in
terms applying to this gift, or to this and other gifts, and, as so applied, inconsistent with the intention
Page 86
taken as a whole, the subsequent clause is neglected, or applied only to other gifts with which it is not
inconsistent8.
1 Where there is inconsistency between two wills of different dates, revocation may be inferred. Two wills of the same
date, neither of which can be proved to be the last executed, are void for uncertainty, so far as they are irreconcilable:
Phipps v Earl of Anglesey (1751) 7 Bro Parl Cas 443, HL .
2 Morrall v Sutton (1845) 1 Ph 533 at 537; Glendening v Glendening (1846) 9 Beav 324 at 326; Cradock v Cradock
(1858) 4 Jur NS 626 at 627; Conquest v Conquest (1868) 16 WR 453; Re Bedson's Trusts (1885) 28 Ch D 523 at 525,
CA (Eng) ; Taylor v Sturrock Sturrock v Sturrock, [1900] AC 225 at 232-233, PC ; Shields v Shields [1910] 1 IR 116 at
120.
3 Doe d Leicester v Biggs (1809) 2 Taunt 109 at 113 ('for want of a better reason'); Re Bywater, Bywater v Clarke (1881)
18 Ch D 17 at 24, CA (Eng), per James LJ .
4 Co Litt 112b; Paramour v Yardley (1579) 2 Plowd 539 at 541; Fane v Fane (1681) 1 Vern 30; Constantine v
Constantine (1801) 6 Ves 100 at 102; Sherratt v Bentley (1834) 2 My & K 149 at 157; Morrall v Sutton (1845) 1 Ph 533 at
536-545; Brocklebank v Johnson (1855) 20 Beav 205 at 212-213; Re Hammond, Hammond v Treharne [1938] 3 All ER
308 (legacy stated in words to be 100 and then in figures 500; 500 prevailed). See also Hopkinson v Ellis (1846) 10 Beav
169 (inconsistent directions as to payment of debts).
5 Re Gare, Filmer v Carter [1952] Ch 80 at 83, [1951] 2 All ER 863 at 865, where the rule was described as 'a counsel of
despair'. See also Press v Parker (1825) 10 Moore CP 158 at 167; White v Parker (1835) 1 Bing NC 573 at 581; Marks v
Solomons (1850) 19 LJ Ch 555 (reversing (1849) 18 LJ Ch 234) where the principle of rejecting the first clause had been
relied on); Chapman v Gilbert (1853) 4 De GM & G 366. See also Re Tan Saw Gan (decd), Yeo Choon Hooi v Yeo Seiw
Gnoh [1968] 1 MLJ 17.
6 Munro v Henderson [1907] 1 IR 440 at 442 per Barton J (affd [1908] 1 IR 260, CA (Ir) . See also Kerr v Baroness
Clinton (1869) LR 8 Eq 462 at 465.
7 Coke v Bullock (1604) Cro Jac 49; Roe d Snape v Nevill (1848) 11 QB 466. If the more general gift is for life, the other
gift may take effect at the end of the life interest: Young v Burdett (1724) 5 Bro Parl Cas 54. See also Gan Kim Heng v
Lee Siew Seok [1970] 1 MLJ 85, FC (prior gift of a share in the land was given effect by the court, and the gift of the
same land's in later clause too effect as to the residue shares the same lands).
8 Adams v Clerke (1725) 9 Mod Rep 154 (inconsistent directions as to payment of legacies); Smith v Pybus (1804) 9 Ves
566 (to three persons or the survivor of them 'in the order they are now mentioned'); Doe d Spencer v Pedley (1836) 1 M
& W 662; Baker v Baker (1847) 6 Hare 269 ('living' applied only to some of donees); Bickford v Chalker (1854) 2 Drew
327 (inconsistent directions as to vesting); Re Bellamy's Trust (1862) 1 New Reap 191 ('if living' applied to one only of
several).
[330.096]
Double residuary gifts
Where two gifts of residue are contained in the same will, they are not treated as irreconcilable so as to
bring into operation the rule that the later must prevail, for the second gift is construed as intended to
operate on lapsed legacies or shares of residue, and as regards other property the first gift is
preferred1. Where, however, one residuary gift is in the will and the other in a codicil, the fit in the will is
revoked2.
1 Re Gare, Filmer v Carter [1952] Ch 80, [1951] 2 All ER 863. See also Davis v Bennett (1861) 30 Beav 226; Kilvington v
Parker (1872) 2I WR 121; Bristow v Masefield (1882) 52 LJ Ch 27; Re Spencer, Hart v Manston (1886) 54 LT 597; Johns
v Wilson [1900] 1 IR 342; Re Isaac, Harrison v Isaac [1905] 1 Ch 427. It seems that the second residuary gift will include
lapsed legacies only where there is a context showing that this was the testator's intention: Re Jessop (1859) 11 I Ch R
424, explained in Re Isaac, Harrison v Isaac [1905] 1 Ch 427; Davis v Bennett (1861) 30 Beav 226 (where lapsed
legacies were held to fall into the first gift). As to the rule that the later gift prevails see [330.095].
2 Earl Hardwicke v Douglas (1840) 7 Cl & Fin 795, HL ; Re Stoodley, Hooson v Locock [1916] 1 Ch 242, CA (Eng) ;
Pennefather v Lloyd [1917] 1 IR 337.
Page 87
[330.097]
Two gifts of the same subject matter
Where an inconsistency arises through a gift to one person and a subsequent gift in the same
instrument of the same thing to another person, it has been held, in order to reconcile the gifts, that
both the donees take the gift together as joint tenants or tenants in common1, or in succession2,
according to the nature of the gift.
1 Co Litt 112b note (1), by Hargrave; Paramour v Yardley (1579) 2 Plowd 539 at 541n; Anon (1582) Cro Eliz 9; Ridout v
Pain (1747) 3 Atk 486 at 493 per Hardwicke LC ; but see Sherratt v Bentley (1834) 2 My & K 149 at 161-162 per Lord
Brougham LC , where the construction by which each donee takes a moiety is criticised. In Re Alexander's Will Trusts
[1948] 2 All ER 111, where the gift was of a divisible article, each donee took a moiety.
2 See Anon (1582) Cro Eliz 9 per Anderson CJ ; Gravenor v Watkins (1871) LR 6 CP 500, Ex Ch , where the Court of
Common Pleas construed the gift as a life estate and remainder in fee, and the Exchequer Chamber, without deciding on
the nature of the first interest, held that the second was an estate in fee subject to the first; Re Bagshaw's Trusts (1877)
46 LJ Ch 567, CA (Eng) , where the second gift was to the children of the first taker.
Page 88
Administration and Succession/(1) Wills/(3) Construction by the Court/ C. Principles of Construction/ (i) In
General/ (B) Application of English Rules of Construction
(B) Application of English Rules of Construction
[330.098]
The rules of construction
English cases are available as authorities for the several principles of construction of wills, as those
principles are applicable in Malaysia1. Where they are appropriate, the English court applies certain
established rules of construction from which the testator's intention may be discovered. These rules lay
down what inferences ought in doubtful cases to be drawn from particular indications of intention2;
some determine what meaning should in general be given to particular words and expressions which
have acquired a technical or quasi-technical nature3; and others determine in what manner particular
common forms of disposition are to be effectuated, where the testator has not fully and unambiguously
disclosed his intentions4.
Well-settled rules of construction are not lightly departed from in cases where they are applicable5. If
applicable, they are to be observed strictly, but in a reasonable way6. They are to be followed only
where the testator has not clearly expressed his own intention and has not given any other guide to the
court7. They are regarded as a dictionary by which all parties, including the court, are bound, but the
court does not have recourse to this dictionary to construe a word or phrase until it has ascertained,
from an examination of the language of the whole will, whether or not the testator has indicated his
intention of using the word or phrase in other than its dictionary meaning8.
1 See the Wills Act 1959 (Act 346) s 30(3) and the Evidence Act 1950 (Act 56) s 100 and EVIDENCE (2011 Reissue)
[500.268].
2 Eg the rules as to the effect of a gift over on failure of issue, and the rules as to implication of limitations: see [330.233].
3 Davenport v Coltman (1842) 12 Sim 588 at 597; Grey v Pearson (1857) 6 HL Cas 61 at 79; Greville v Browne (1859) 7
HL Cas 689 at 703; Re Bawden, National Provincial Bank of England v Cresswell Bawden v Cresswell, [1894] 1 Ch 693
at 697-698 per Kekewich J ('the dictionary is to be found in those decisions'); Barraclough v Cooper [1908] 2 Ch 121n at
124n.
4 Re Jodrell, Jodrell v Seale (1890) 44 Ch D 590 at 610, CA (Eng) (previous cases useful 'when they put an
interpretation on common forms'). As to the evidence admissible in cases of ambiguity see [330.075], [330.087].
5 Ralph v Carrick (1879) 11 Ch D 873 at 878, CA (Eng), per Cotton LJ ; Re Bedson's Trusts (1885) 28 Ch D 523 at
525-526, CA (Eng) . The ground on which these rules are followed is either that certainty in judicial decisions is thereby
attained (Jesson v Wright (1820) 2 Bligh 1 at 56, HL, per Lord Redesdale ; Grey v Pearson (1857) 6 HL Cas 61 at 108;
Roddy v Fitzgerald (1858) 6 HL Cas 823 at 884; Perrin v Morgan [1943] AC 399 at 420, [1943] 1 All ER 187 at 197, HL );
or that the rules make it possible to advise confidently on titles (Roddy v Fitzgerald (1858) 6 HL Cas 823 at 875); or that it
is to be assumed that lawyers draw instruments according to the known state of the law, which includes the rules form
time to time adopted by the court in the construction of wills, and the testator must be supposed to have used his words
in the sense so fixed (Re Bawden, National Provincial Bank of England v Cresswell Bawden v Cresswell, [1894] 1 Ch
693 at 697-698). See also Greville v Browne (1859) 7 HL Cas 689 at 703; Kingsbury v Walter [1901] AC 187 at 189, HL
). It has been suggested that they were invented to give effect to what is an average instances the intention of the
testator: Re Inman, Inman v Rolls [1893] 3 Ch 518 at 520 per Kekewich J .
6 Perrin v Morgan [1943] AC 399 at 420, [1943] 1 All ER 187 at 197, HL .
7 Limpus v Arnold (1884) 15 QBD 300 at 302, CA (Eng) ; Re Coward, Coward v Larkman (1887) 57 LT 285 at 287, CA
(Eng) ; Re Hamlet, Stephen v Cunningham (1888) 39 Ch D 426 at 434, CA (Eng) ; Re Stone, Baker v Stone [1895] 2 Ch
196 at 200, CA (Eng) .
8 Perrin v Morgan [1943] AC 399 at 421, [1943] 1 All ER 187 at 197, HL . The rules of construction, therefore, merely
denote an inference in favour of a given construction of particular words (Lee v Pain (1844) 4 Hare 201 at 216-217 per
Page 89
Wigram V-C ), and are subject to any contrary intention disclosed by the will (Singleton v Tomlinson (1878) 3 App Cas
404 at 423, HL ). In this respect they differ from rules of law, which operate independently of, and even contrary to, the
testator's intention.
[330.099]
Words used in their ordinary sense
If the language of the will can be read in its ordinary and natural sense1 so as to make sense with
respect to the surrounding circumstances, no rule of construction is applicable to ascertain the
testator's intention2, and no reliance may be placed on former decisions of the court on similar or even
identical words in other wills3.
Previous decisions on the meaning of a word or phrase may assist the court to determine what its true
meaning may be, but they do not prevent the court from attributing a different meaning to that word or
phrase in a different will, at a different date, and in a different context4.
1 See [330.101].
2 Leader v Duffey (1888) 13 App Cas 294 at 301-303, HL ; Inderwick v Tatchell [1903] AC 120 at 122, HL ; Comiskey v
Bowring-Hanbury [1905] AC 84 at 88, HL .
3 Gorringe v Mahlstedt [1907] AC 225 at 226, HL . See also Re Tredwell, Jeffray v Tredwell [1891] 2 Ch 640 at 653, CA
(Eng) ; Re Morgan, Morgan v Morgan [1893] 3 Ch 222 at 228-232, CA (Eng) ; Re Palmer, Palmer v Answorth [1893] 3
Ch 369 at 373, CA (Eng) ; Macculloch v Anderson [1904] AC 55 at 60, HL ; Chapman v Perkins [1905] AC 106 at 108,
HL ; Re Cope, Cross v Cross [1908] 2 Ch 1 at 3, CA (Eng) .
4 See Re Rayner, Rayner v Rayner [1904] 1 Ch 176 at 189, CA (Eng) . See also Re Athill, Athill v Athill (1880) 16 Ch D
211 at 223, CA (Eng), per Jessel MR ; Perrin v Morgan [1943] AC 399 at 417, [1943] 1 All ER 187 at 195, HL, per Lord
Thankerton .
[330.100]
Weight to be given to previous decisions
Previous cases on the construction of other wills are considered by the court, particularly where the
question relates to real property1, but no weight is given to them2 except in so far as they lay down
some rules of construction3, applicable to the case before the court, or are based on reasoning which
commends itself to the court. The proper way to construe a will is to form an opinion apart from the
cases and then see whether the cases require a modification of that opinion, not to begin by
considering how far the will resembles other wills on which decisions have been given4.
Although the court may follow a previous decision on another will where the language was identical
with, or very similar to, that in the will under consideration5, and where no real distinction exists
between the cases6, mere similarity of language does not bind the court to adopt a similar
construction7. The surrounding circumstances may be different in every case and may give a different
meaning to the words8, and it is the principles of construction exemplified, rather than the particular
decisions themselves, that are followed9. One judge is not bound to follow another on questions of
mere verbal interpretation10, and even when the established rules of construction are properly applied,
two minds may fairly differ11.
1 Miles v Harford (1879) 12 Ch D 691 at 698; Morgan v Thomas (1882) 8 QBD 643 at 644, CA (Eng) ; Re Bright-Smith,
Bright-Smith v Bright-Smith (1886) 31 Ch D 314 at 318. The fact that the testator's intention as to a blended gift of real
and personal estate was defeated by these rules so far as regards the real estate did not prevent effect being given to
Page 90
his intention as to the personal estate: Holmes v Prescott (1864) 10 Jur NS 507.
2 Roe d Dodson v Grew (1767) 2 Wils 322 at 324; Re Masson, Morton v Masson (1917) 86 LJ Ch 753 at 756, CA (Eng) .
See also the cases cited in [330.099] note 3.
3 Doe d Smith v Fleming (1835) 2 Cr M & R 638 at 651 per Lord Abinger CB ; Re Ingle's Trusts (1871) LR 11 Eq 578 at
586-587; Waring v Currey (1873) 22 WR 150; Singleton v Tomlinson (1878) 3 App Cas 404 at 415-423; Re Jackson's
Will (1879) 13 Ch D 189 at 194; Re Jodrell, Jodrell v Seale (1890) 44 Ch D 590 at 610, CA (Eng) ; Re Morgan, Morgan v
Morgan [1893] 3 Ch 222 at 232, CA (Eng) ; Walford v Walford [1912] AC 658 at 664, HL .
4 Re Tredwell, Jeffray v Tredwell [1891] 2 Ch 640 at 659-660, CA (Eng), per Kay LJ ; Re Blantern, Lowe v Cooke [1891]
WN 54, CA (Eng) (adopted in Re Sanford, Sanford v Sanford [1901] 1 Ch 939 at 941 per Joyce J ); Re Williams, Metcalf
v Williams [1914] 1 Ch 219 at 222 (affd [1914] 2 Ch 61, CA (Eng) ); Stewart v Murdoch [1969] NI 78 at 89 per Lord
MacDermott LCJ . This whole paragraph was cited and approved in Re Ramadge [1969] NI 71 at 74 per Lowry J .
5 Previous cases may be of little use, for the words of one will are seldom the same as those of another: Rhodes v
Rhodes (1882) 7 App Cas 192 at 206, PC .
6 Roddy v Fitzgerald (1858) 6 HL Cas 823 at 875; Thorpe v Thorpe (1862) 1 H & C 326 at 336-337; Lightfoot v Burstall
(1863) 1 Hem & M 546 at 549. See also Doe d Penwarden v Gilbert (1821) 6 Moore CP 268 at 281 ('literally and
substantially the same').
7 Cormack v Copous (1853) 17 Beav 397 at 402; Hood v Clapham (1854) 19 Beav 90 at 94; Slingsby v Grainger (1859)
7 HL Cas 273 at 284. 'The nonsense of one man cannot be a guide for that of another': Smith v Cofin (1795) 2 Hy Bl 444
at 450. See also Re Nolan, Sheridan v Nolan [1912] 1 IR 416 at 420. As to the testator's intention being gathered from
the words of the will see Graves v Bainbrigge (1792) 1 Ves 562 at 564 per Lord Commissioner Eyre .
8 See Grey v Pearson (1857) 6 HL Cas 61 at 108 per Lord Wensleydale ; Abbott v Middleton Ricketts v Carpenter,
(1855) 21 Beav 143; affd (1858) 7 HL Cas 68 at 119 per Lord Wensleydale (cited with approval in Walford v Walford
[1912] AC 658 at 664, HL ). See also Doe d Long v Laming (1760) 2 Burr 1100 at 1112; Sayer v Bradly (1856) 5 HL Cas
873 at 894; River Wear Comrs v Adamson (1877) 2 App Cas 743 at 764; Re Coley, Hollinshead v Coley [1903] 2 Ch 102
at 109, CA (Eng) ; Perrin v Morgan [1943] AC 399 at 408, [1943] 1 All ER 187 at 191, HL . Cf eg Lord Douglas v Chalmer
(1795) 2 Ves 501 with Hinckley v Simmons (1798) 4 Ves 160 (both cases commented on by Lord Eldon LC in Cambridge
v Rous (1802) 8 Ves 12 at 22).
9 See Waite v Littlewood (1872) 8 Ch App 70 at 73 per Lord Selborne LC ; Re Booth, Booth v Booth [1894] 2 Ch 282 at
285.
10 Re Veale's Trusts (1876) 4 Ch D 61 at 68 per Jessel MR , who described this rule as 'the rule laid down by the House
of Lords in Jenkins v Hughes' (1860) 8 HL Cas 571. On a question of mere construction, even the decision of the appeal
court on similar grounds is not binding on another court, and much less on a court of equal jurisdiction: Hack v London
Provident Building Society (1883) 23 Ch D 103 at 111, CA (Eng), per Jessel MR .
11 Vickers v Pound (1858) 6 HL Cas 885 at 899 per Lord Wensleydale ; Re Veale's Trusts (1876) 4 Ch D 61 at 65 per
Jessel MR (affd (1877) 5 Ch D 622, CA (Eng) ); Selby v Whittaker (1877) 6 Ch D 239 at 245, CA (Eng) . See further Re
Chapman, Perkins v Chapman [1904] 1 Ch 431, CA (Eng) , where the members of the court agreed as to the principles
to be applied, but differed as to the result. See also Roddy v Fitzgerald (1858) 6 HL Cas 823 at 876; Rhodes v Rhodes
(1882) 7 App Cas 192 at 204, PC .
Page 91
Administration and Succession/(1) Wills/(3) Construction by the Court/ C. Principles of Construction/ (ii)
Context, Meaning and Effect of Words
(ii) Context, Meaning and Effect of Words
[330.101]
Words prima facie to receive their grammatical and ordinary meaning
It is a general rule1, applicable to all wills2, that, unless it appears from the context of the whole will that
the testator intended a different meaning to be given to the words3, ordinary words are to be first read in
their grammatical and ordinary sense4, and legal and technical words in their legal and technical sense5,
and the usual rules of grammar are to be applied6.
1 Re Crawford's Trust (1854) 2 Drew 230 at 233 per Kindersley V-C ; Gether v Capper (1855) 24 LJCP 69 at 71;
Southgate v Clinch (1858) 4 Jur NS 428 at 429. The rule comes from Justinian's Digest: see Just Dig lib 32 s 69, cited in
Hart v Tulk (1852) 2 De GM & G 300 at 313, and in Lowe v Thomas (1854) 5 De GM & G 315 at 316. The rule that words
are to be read in their ordinary and grammatical sense has been enunciated in a very large number of cases, and is
common described as the 'golden' rule; it is applicable to all kinds of instruments: see Re Levy, ex p Walton (1881) 17 Ch
D 746 at 751, CA (Eng) ; Caledonian Rly Co v North British Rly Co (1881) 6 App Cas 114 at 131, HL ; Spencer v
Metropolitan Board of Works (1882) 22 Ch D 142 at 148, CA (Eng) .
2 Smith v Butcher (1878) 10 Ch D 113 at 116 per Jessel MR .
3 Hamilton v Ritchie [1894] AC 310 at 313, HL, per Lord Watson . See also Gordon v Gordon (1871) LR 5 HL 254 at 271
per Lord Chelmsford . The rule as to giving the ordinary meaning to a word is thus not a hard and fast rule, since it is
entirely subservient to the context of the will: see Seale-Hayne v Jodrell [1891] AC 304 at 306, HL, per Lord Herschell ;
Perrin v Morgan [1943] AC 399 at 421, [1943] 1 All ER 187 at 197-198, HL, per Lord Romer . See also [330.102].
4 Thellusson v Woodford Woodford v Thellusson, (1799) 4 Ves 227 at 329 per Arden MR , adopted in Villar v Sir Walter
Gilbey [1907] AC 139 at 147, HL, per Lord Atkinson . See also Poole v Poole (1804) 3 Bos & P 620 at 627; Church v
Mundy (1808) 15 Ves 396 at 406; Trevor v Trevor (1847) 1 HL Cas 239 at 264, 266-267, 270; Williams v Lewis (1859) 6
HL Cas 1013 at 1023; De Windt v De Windt (1866) LR 1 HL 87 at 92; Gibbons v Gibbons (1881) 6 App Cas 471 at 479,
PC ; Hamilton v Ritchie [1894] AC 310 at 313, HL ; Higgins v Dawson [1902] AC 1 at 12, HL ; Gorringe v Mahlstedt [1907]
AC 225 at 227, HL ; Tarbutt v Nicholson (1920) 89 LJPC 127; Perrin v Morgan [1943] AC 399 at 406, [1943] 1 All ER 187
at 190, HL .
5 Aumble v Jones (1709) 1 Salk 238; Buck d Whalley v Nurton (1797) 1 Bos & P 53 at 57; Jesson v Wright (1820) 2 Bligh
1 at 57, HL ; Roddy v Fitzgerald (1858) 6 HL Cas 823; Giles v Melsom (1873) LR 6 HL 24 at 31; Von Grutten v Foxwell
Foxwell v Van Grutten, [1897] AC 658 at 672-684, HL ; Re Keane's Estate [1903] 1 IR 215; Re Simcoe, Vowler-Simcoe v
Vowler [1913] 1 Ch 552 at 557; Davy v Redington [1917] 1 IR 250, CA (Ir) .
6 Re Harrison, Turner v Hellard (1885) 30 Ch D 390 at 393, CA (Eng) . Thus, relative pronouns and other relative
expressions are prima facie referable to the last antecedent: Castledon v Turner (1745) 3 Atk 257; Adshead v Willetts
(1861) 29 Beav 358 at 361; Re Williams, Gregory v Muirhead (1913) 134 LT Jo 619. For an example to the contrary see
Fox v Collins (1761) 2 Eden 107. The construction of a will may thus be a question for a grammarian rather than for a
lawyer: Fenny d Collings v Ewestace (1815) 4 M & S 58 at 60; Child v Elsworth (1852) 2 De GM & G 679 at 683.
[330.102]
Effect of context and circumstances in excluding rule
Where words interpreted in their ordinary and grammatical sense are consistent with the surrounding
circumstances1, this sense of the words must be adhered to2. Where, however, that course would lead
to some absurdity3 or some repugnance or inconsistency with the declared intention of the testator,
Page 92
collected from the whole of the will, the grammatical and ordinary, or the technical, sense of the words
may be modified so as to avoid that absurdity or inconsistency, but no further4. If the testator's intention
can be collected with reasonable certainty from the whole will, with the aid of extrinsic evidence of a kind
properly admissible5, that intention must have effect given to it beyond and even against the literal or
ordinary sense of particular words and expressions, and the court is not bound to adhere to the ordinary
or legal meaning6.
In order to deprive words of their appropriate usual sense there must be sufficient to satisfy a judicial
mind that they were meant to be used by the testator in some other sense, and to show what that other
sense is7. The burden of proof lies on those who attribute to the words such other sense8.
1 Shore v Wilson, Lady Hewley's Charities (1842) 9 Cl & Fin 355 at 525, HL . As to the admissibility of evidence of
surrounding circumstances see [330.082].
2 Wigrams's Extrinsic Evidence (5th Edn) 18 Proposition II, adopted in Croker v Marquess of Hertford (1844) 4 Moo PCC
339 at 364. See also Re Cope, Cross v Cross [1908] 2 Ch 1 at 4, CA (Eng) ; Livesey v Livesey (1849) 2 HL Cas 419 at
432.
3 'An absurdity' does not mean merely a result that the court considers ought not to have been the testator's intention:
Rhodes v Rhodes (1882) 7 App Cas 192 at 205, PC .
4 Warburton v Loveland d Ivie (1828) 1 Hud & B 623 at 648, Ex Ch per Burton J (affd (1832) 2 Dow & Cl 480, HL ),
adopted in Grey v Pearson (1857) 6 HL Cas 61 at 106 per Lord Wensleydale . See also Hicks v Sallitt (1854) 3 De GM &
G 782 at 793-794; Grey v Pearson (1857) 6 HL Cas 61 at 78 per Lord Cranworth LC ; Abbott v Middleton Ricketts v
Carpenter, (1855) 21 Beav 143; affd (1858) 7 HL Cas 68 at 94-114; Slingsby v Grainger (1859) 7 HL Cas 273 at 284;
Thellusson v Lord Rendlesham Thellusson v Thellusson Hare v Robarts, , (1859) 7 HL Cas 429 at 454, 470, 488, 490,
494, 519; Long v Lane (1885) 17 LR Ir 11 at 35, CA (Ir) ; Vacher & Sons Ltd v London Society of Compositors [1913] AC
107 at 117, HL ; Re Ionides, London County Westminster and Parr's Bank Ltd v Craies [1922] WN 46. It has been said that
the rule that words are to receive their ordinary and grammatical meaning speaks, not of the meaning of a word, but of a
sentence, or of a series of limitations in a will: Cave v Horsell [1912] 3 KB 533 at 544, CA (Eng), per Buckley LJ . It has
also been observed that the branch of the rule stated in the text seems to be but a means of showing by the context that
the words were not used in their ordinary sense: Thellusson v Lord Rendlesham Thellusson v Thellusson Hare v Robarts,
, (1859) 7 HL Cas 429 at 494 per Lord Cranworth ; Rhodes v Rhodes (1882) 7 App Cas 192 at 205, PC, per Lord
Blackburn .
5 As to the admissibility of extrinsic evidence see [330.073] and following.
6 Vauchamp v Bell (1822) 6 Madd 343 at 347; Key v Key (1853) 4 De GM & G 73 at 84; Ware v Watson (1855) 7 De GM
& G 248 at 259; Grey v Pearson (1857) 6 HL Cas 61 at 99 per Lord St Leonards ; Roddy v Fitzgerald (1858) 6 HL Cas 823
at 871 per Lord Cranworth LC ; Pride v Fooks (1858) 3 De G & J 252 at 266; Re Redfern, Redfern v Bryning (1877) 6 Ch
D 133 at 136.
7 Roddy v Fitzgerald (1858) 6 HL Cas 823 at 877 per Lord Wensleydale ; Van Grutten v Foxwell Foxwell v Van Grutten,
[1897] AC 658 at 672, HL .
8 Re Crawford's Trusts (1854) 2 Drew 230 at 233 per Kindersley V-C .
[330.103]
Testator's right to be capricious
A testator has a right to be capricious if he chooses1, and, subject to the statutory jurisdiction to award
reasonable financial provisions in favour of the testator's spouse, former spouse and dependants2, his
bounty is absolute and without control as to motive3. Accordingly, if the words used by the testator are
unambiguous in the context, the sense given to the words by the context cannot be departed from, nor is
the court induced to put a meaning on them different from that which it judicially determines to be their
meaning, on account of any difficulty or inconvenience in carrying out the intention4, or because they
lead to consequences which are generally considered capricious5, unusual6, unjust7, harsh,
unreasonable8 or even absurd9.
Page 93
1 Hart v Tulk (1852) 2 De GM & G 300 at 313; Boosey v Gardener (1854) 5 De GM & G 122 at 124; Varley v Winn (1856)
2 K & J 700 at 707; Jenkins v Hughes (1860) 8 HL Cas 571 at 589-592; Re Hamlet, Stephen v Cunningham (1888) 39 Ch
D 426 at 434, CA (Eng) ; Crawford's Trustees v Fleck 1910 SC 998 at 1009.
2 See [330.008].
3 Occleston v Fullalove (1874) 9 Ch App 147 at 161.
4 Driver d Frank v Frank (1814) 3 M & S 25 at 30-31 per Dampier J, citing authorities to show that, even if the court is
perfectly aware of the testator's intention, effect cannot be given to it unless it appears from the words of the will (affd on
appeal (1818) 8 Taunt 468). See also Gaskell v Harman (1801) 6 Ves 159 (on appeal (1805) 11 Ves 489 at 497); Elwin v
Elwin (1803) 8 Ves 547 at 554-555; Defflis v Goldschmidt (1816) 1 Mer 417 at 419-420; Bernard v Mountague (1816) 1
Mer 422 at 431; Smith v Streatfield (1816) 1 Mer 358 at 360; Martineau v Briggs (1875) 45 LJ Ch 674, 23 WR 889, HL ; Re
Seal, Seal v Taylor [1894] 1 Ch 316 at 321, CA (Eng) .
5 Wharton v Barker (1858) 4 K & J 483 at 503; Abbott v Middleton Ricketts v Carpenter, (1855) 21 Beav 143; affd (1858)
7 HL Cas 68 at 89 per Lord Cranworth (adopted in Bathurst v Errington (1877) 2 App Cas 698 at 709, HL, per Lord Cairns
LC ); Selby v Whittaker (1877) 6 Ch D 239 at 245, CA (Eng) ; Hickling v Fair [1899] AC 15 at 33-38, HL ; Re Whitmore,
Walters v Harrison [1902] 2 Ch 66 at 70, CA (Eng) .
6 Van Grutten v Foxwell Foxwell v Van Grutten, [1897] AC 658 at 678, HL .
7 Inderwick v Tatchell [1903] AC 120 at 123-126, HL .
8 Abbott v Middleton Ricketts v Carpenter, (1855) 21 Beav 143; affd (1858) 7 HL Cas 68 at 89 per Lord Cranworth ;
Bathurst v Errington (1877) 2 App Cas 698. See also Mason v Robinson (1825) 2 Sim & St 295 at 299 (irrational
dispositions); Re Polland's Estate (1863) 3 De G J & Sm 541 at 553 (dispositions in part unusual, in part eccentric); Martin
v Holgate (1866) LR 1 HL 175 at 189.
9 Graves v Bainbrigge (1792) 1 Ves 562 at 564.
[330.104]
Presumption in ambiguous cases
Without some clear expression of intention on a testator's part the court does not attribute to him a
capricious intention1, or a whimsical or harsh result to his dispositions2, where the words of his will can
be read otherwise. Accordingly if, in the absence of direct evidence of intention, the language used in a
will admits of two constructions, according to one of which the property disposed of devolves in a
rational, convenient and ordinary course of succession, and according to another in an irrational and
inconvenient course, so that the court would be driven to the conclusion that the testator was acting
capriciously, without any intelligible motive and contrary to the ordinary mode in which persons act in
similar cases, the court leans towards the former construction as being that which was intended, even if
this requires a meaning to be given to the words different from their ordinary meaning3.
1 Hillersdon v Lowe (1843) 2 Hare 355 at 366; Hat v Tulk (1852) 2 De GM & G 300 at 313; Thellusson v Lord Rendlesham
Thellusson v Thellusson Hare v Robarts, , (1859) 7 HL Cas 429 at 497-498.
2 Barraclough v Cooper [1908] 2 Ch 121n at 125n. See also Vickers v Pound (1858) 6 HL Cas 885 at 897; Barthurst v
Errington (1887) 2 App Cas 698 at 714, HL .
3 Abbott v Middleton Ricketts v Carpenter, (1855) 21 Beav 143; affd (1858) 7 HL Cas 68 at 89 per Lord Cranworth . See
also Jenkins v Herries (1819) 4 Madd 67 at 82 per Leach V-C ; Jenkins v Hughes (1860) 8 HL Cas 571 at 592; Atkinson v
Holtby (1863) 10 HL Cas 313 at 330; Sidney v Wilmer (1863) 4 De G J & Sm 84 at 103; Gordon v Gordon (1871) LR 5 HL
254 at 279-284; Bathurst v Errington (1877) 2 App Cas 698 at 709-711, HL ; Selby v Whittaker (1877) 6 Ch D 239 at 248,
CA (Eng) ; Re Hudson, Hudson v Hudson (1882) 20 Ch D 406 at 417; Locke v Dunlop (1888) 39 Ch D 387 at 393, CA
(Eng) ; Bowman v Bowman [1899] AC 518 at 528, HL ; Re Whitmore, Walters v Harrison [1902] 2 Ch 66 at 70, CA (Eng) ;
Re Jones, Lewis v Lewis [1910] 1 Ch 167 at 172-173.
Page 94
[330.105]
Words having more than one primary meaning
There are few words, if indeed there are any, which bear a meaning so exact that the reader can
disregard the surrounding circumstances and the context in ascertaining the sense in which they are
employed1. Where a word has more than one proper and recognised meaning, the question in which
sense it is used in a particular passage must be decided by the context and the surrounding
circumstances, and no one meaning can be treated as having a paramount claim to be adopted in
preference to any other2.
1 Seale-Hayne v Jodrell [1891] AC 304 at 306 per Lord Herschell ; Cave v Horsell [1912] 3 KB 533 at 543, CA (Eng), per
Buckley LJ . See also Hodgson v Ambrose (1780) 1 Doug K B 337 at 341; Doe d Andrew v Lainchbury (1809) 11 East 290
at 296. Cf Re Osburn (1969) 113 Sol Jo 387, CA (Eng) , where a gift of a house was held not to be included in a 'list of
small presents'.
2 Cave v Horsell [1912] 3 KB 533 at 543, CA (Eng) ; Perrin v Morgan [1943] AC 399 at 406-417, [1943] 1 All ER 187 at
190-195. A word which is not in its ordinary meaning a technical word may have several senses and be used in one of
them in which it is technical: Clayton v Gregson (1835) 5 Ad & El 302 at 308.
[330.106]
Words judicially defined
Among the words and expressions that have been in common use in wills, the meaning of which at large,
or as affected by various contexts, has been the subject of judicial determination, are the following1:
'business'2; 'creditors'3; 'entitled'4; 'except upon' attaining an age5; 'executorship expenses' or
'testamentary expenses'6; 'free of duty'7; 'gifts or settlements'8; 'probate valuation'9; 'marriage'10;
'unmarried'11; 'minority'12; 'during the present war'13 and 'simultaneous death'14. The words 'subject to
the provisions of the preceding clause' mean subject to any effective disposition under that clause15.
1 For other examples in relation to property and donees see [330.141] and following, [330.180] and following.
2 'Business' in a clause containing a power of advancement has been held to include a medical practice: Re Williams' Will
Trusts, Chartered Bank of India, Australia and China v Williams [1953] Ch 138, [1953] 1 All ER 536. For the meaning of
'business' see also [330.142].
3 'Creditors' extends to all creditors, secured as well as unsecured: Re Leach, Chatterton v Leach [1948] Ch 232, [1948] 1
All ER 383.
4 'Entitled' may mean entitled in possession, or entitled in interest: Chorley v Loveband (1863), 33 Beav 189, Re Grylls'
Trusts (1868) LR 6 Eq 589; Umbers v Jaggard (1870) LR 9 Eq 200; Abbiss v Burney, Re Finch (1880) 17 Ch D 211 at 223;
Re Fothergill's Estate, Price-Fothergill v Price [1903] 1 Ch 149. For the meaning of 'entitled as aforesaid' see Re Whiter,
Windsor v Jones (1911) 105 LT 749.
5 This means 'not before': Re Summer's Will Trusts, Midland Bank Executor and Trustee Co Ltd v Summer [1969] 1 All ER
779, [1969] 1 WLR 373.
6 These terms are ordinarily synonymous, and denote the expenses incident to the proper performance of the executor's
duty: Sharp v Lush (1879) 10 Ch D 468 at 470; Re Matthews's Will Trusts, Bristow v Matthews [1961] 3 All ER 869, [1961]
1 WLR 1415. For the meaning of 'expenses' see Re Berrey's Will Trust's Greening v Waters [1959] 1 All ER 15, [1959] 1
WLR 30.
7 'Free of duty' prima facie refers to duty payable under local law (formerly estate duty) and not to duty payable under
foreign law, and to duty payable on the testator's death and not to future duty.
8 See Re Noad, Midland Bank Executor and Trustee Co Ltd v Noad [1944] 2 All ER 470, CA (Eng) (where in the context,
the words meant any benefaction); Re Figgis, Roberts v MacLaren [1969] 1 Ch 123, [1968] 1 All ER 999 (where 'gifts in my
lifetime' did not include money placed in a joint bank account).
Page 95
9 'Probate valuation' means the value given in the Inland Revenue affidavit leading to probate (Re Eumorfopoulos, Ralli v
Eumorfopoulos [1944] Ch 133, [1943] 2 All ER 719), but 'valuation agreed for probate' means the valuation agreed
ultimately with the fiscal authorities (Re De Lisle's Will Trusts, White v De Lisle [1968] 1 All ER 492, [1968] 1 WLR 322).
10 'Marriage' prima facie refers to a marriage valid in law: Viscount Falkland v Bertie (1698) 2 Vern 333 at 336; Allen v
Wood (1834) 1 Bing N C 8; Re M'loughlin's Estate (1878) 1 LR Ir 421, CA (Ir) .
11 'Unmarried' has no fixed meaning (Pratt v Mathew (1856) 22 Beav 328; Clarke v Colls (1861) 9 HL Cas 601), but is
generally construed to mean 'never having been married' (Heywood v Heywood (1860) 29 Beav 9 at 16; Re Sanders'
Trusts (1866) LR 1 Eq 675; Dalrymple v Hall (1881) 16 Ch D 715; Re Sergeant, Mertens v Walley (1884) 26 Ch D 575;
Roberts v Bishop of Kilmore [1902] 1 IR 333; Re Collyer, Collyer v Back (1907) 24 TLR 117; Re Hall-Dare, Le Marchant v
Lee Warner [1916] 1 Ch 272). See also Re Thistlethwayte's Trust (1855) 24 LJ Ch 712. It may mean 'not having a spouse
living': Clarke v Colls (1861) 9 HL Cas 601; Re Chant, Chant v Lemon [1900] 2 Ch 345. See also Re Jones, Last v Dobson
[1915] 1 Ch 246, where 'unmarried and without leaving lawful issue' was held to mean 'widower', as otherwise the last five
words were superfluous. As to a gift to unmarried children see Jubber v Jubber (1839) 9 Sim 503; Hall v Robertson (1853)
4 De GM & G 781.
12 'Minority' prima facie refers to the period up to 18 years of age (see the Age of Majority Act 1971 (Act 21) s 2, but may
refer to the traditional minority, ie the period up to 21 years of age, or the time during which the testator has kept the child
out of full control of his property (Milroy v Milroy (1844) 14 Sim 48; Fraser v Fraser (1863) 1 New Rep 430). For the
meaning of 'children' see [330.182].
13 These words may mean 'during the continuance of hostilities': Re Cooper, Bendall v Cooper [1946] Ch 109, [1946] 1 All
ER 28. See also Re Orchard, Carpenter v Lauer [1948] 1 All ER 203 ('armistice').
14 'Simultaneous death' does not mean death in such circumstances that a physician would hold that death at the same
moment of time had been proved (Hickman v Peacey [1945] AC 304, [1945] 2 All ER 215, HL (where it is doubted
whether in this sense simultaneous death is possible), but death in such circumstances that the ordinary man would infer
that death was simultaneous (see Re Pringle, Baker v Matheson [1946] Ch 124, [1946] 1 All ER 88). The expression is
normally to be construed as a reference to time, and not to death as a result of the same calamity: Re Rowland, Smith v
Russell [1963] 1 Ch 1, [1962] 2 All ER 837, CA (Eng) (death of wife 'preceding or coinciding with' testator's death). Cf Re
Harmer (1964) 42 DLR (2d) 321 (Ont CA) , where a provision relating to simultaneous deaths was held to apply where the
husband's death preceded that of the testatrix.
15 Re Edwards' Will Trusts, Dalgleish v Leighton [1948] Ch 440, [1948] 1 All ER 821, CA (Eng) .
[330.107]
Effect to be given to every word
It is a general, but not inflexible1, canon of construction that the will should be so construed that every
word has effect2. A word ought not to be disregarded if it can be given some meaning3 that is not
contrary to the testator's intention plainly expressed in other parts of the will4, and it is not to be assumed
that the testator has used additional words without some additional purpose or without any purpose at
all5.
The rule is not adhered to where its application would defeat the testator's intention as collected from the
context of the whole will6, and in such cases the words may be regarded as merely explanatory,
expressing what would otherwise have been true under the will7. There is no presumption that testators
use the irreducible minimum of words to effect their purpose, or that each word should change the
meaning of the sentence, and the objection of surplusage has weight only when the presence of the
word or phrase would be unusual or unaccountable if it were not specially inserted for the purpose of
altering the meaning of the sentence8. In particular, words are not to be given a meaning other than their
ordinary meaning merely because they are in their ordinary meaning only surplusage9, or because other
words, inconsistent with their use in that meaning but insufficient to give them a different meaning, may
have to be rejected10.
1 See Martin v Holgate (1866) LR 1 HL 175 at 185 per Lord Cranworth LC , where the rule was countered by the rule that
a gift should not be construed as contingent unless the context so requires. See also Clarke v Colls (1861) 9 HL Cas 601
at 613-618.
Page 96
2 Blamford v Blamford (1615) 3 Bulst 98 at 103 ('every string ought to give his sound'); Barker v Giles (1725) 2 P Wms 280
at 282; King v Burchell (1759) 1 Eden 424 at 432; Collet v Lawrence (1791) 1 Ves 268 at 269; Thellusson v Woodford
Woodford v Thellusson, (1799) 4 Ves 227 at 329; Milsom v Awdry (1800) 5 Ves 465 at 467; Doe d Tyrrell v Lyford (1816)
4 M & S 550 at 558; Hastings v Hane (1883) 6 Sim 67 at 71; Morrall v Sutton (1845) 1 Ph 533 at 536; Neathway v Reed
(1853) 3 De GM & G 18 at 23; King v Cleaveland (1859) 4 De G & J 477 at 488; Clarke v Colls (1861) 9 HL Cas 601 at
612 per Lord Cranworth ; Parker v Tootal (1865) 11 HL Cas 143 at 159; Best v Stonehewer (1865) 2 De G J & Sm 537 at
541; Massy v Rowen (1869) LR 4 HL 288 at 301 per Lord Cairns ; Re Sanford, Sanford v Sanford [1901] 1 Ch 939 at 943;
Rickerby v Nicholson [1912] 1 IR 343 at 347.
3 Re Croxon, Croxon v Ferrers [1904] 1 Ch 252 at 258 ('lawfully' assume, in name and arms clause). See also Heasman v
Pearse (1871) 7 Ch App 275 at 283.
4 Doe d Baldwin v Rawding (1819) 2 B & Ald 441 at 448 per Abbott CJ and at 451 per Holroyd J . See also Reeves v
Brymer (1799) 4 Ves 692 at 698; Constantine v Constantine (1801) 6 Ves 100 at 102.
5 Oddie v Woodford (1821) 3 My & Cr 584 at 614 per Lord Cottenham LC ; Quarm v Quarm [1892] 1 QB 184 at 186. See
also Foxwell v Van Grutten (1900) 82 LT 272, HL .
6 Sayer v Bradly (1856) 5 HL Cas 873 at 899.
7 M'Lachlan v Taitt (1860) 2 De GF & J 449 at 454 per Lord Campbell LC . See also Hicks v Sallitt (1854) 3 De GM & G
782 at 794; Re Walton's Estate (1856) 8 De GM & G 173 at 175 per Knight Bruce LJ .
8 Re Boden, Boden v Boden [1907] 1 Ch 132 at 143, CA (Eng), per Feltcher Moulton LJ . See also Clarke v Colls (1861) 9
HL Cas 601 at 613 per Lord Cranworth ('the language of conveyancers is proverbially prolix and redundant').
9 Monk v Mawdsley (1827) 1 Sim 286 at 290-291; Taylor v Beverley (1844) 1 Coll 108 at 116; Craik v Lamb (1844) 1 Coll
489 at 493-494; Re Kirkbride's Trusts (1866) LR 2 Eq 400; Giles v Melsom (1873) LR 6 HL 24 at 33-34; Palmer v Orpen
[1894] 1 IR 32 at 38; Roberts v Bishop of Kilmore [1902] 1 IR 333; Re Hampton, Hampton v Mawer (1918) 62 Sol Jo 585.
10 Even technical words may be given a meaning other than their technical meaning where they are inconsistent with the
general intention (Jesson v Wright (1820) 2 Bligh 1, HL ; Roddy v Fitzgerald (1858) 6 HL Cas 823), but unless the
inconsistency is plain, the rules of construction must prevail (Roddy v Fitzgerald (1858) 6 HL Cas 823 at 871 per Lord
Cranworth ).
[330.108]
Presumption as to repeated words
A canon of construction which, however, is far from universal and always requires a good deal of care in
its application1 is that a word used in one part of the will with some clear and definite meaning is
intended to have the same meaning in another part of the will where its meaning is not clear2.
The force of the context may, however, give different meanings to the same word when used in different
parts of the will3. As the words must be construed with reference to the subject matter4, different
meanings may be given to the same word or phrase when used both with reference to real property and
with reference to personal property in the will, even in the same sentence5.
1 Clifford v Koe (1880) 5 App Cas 447 at 459, HL, per Lord Selborne LC .
2 Re Birks, Kenyon v Birks [1900] 1 Ch 417 at 418, CA (Eng), per Lindley MR . See also Ridgeway v Munkittrick (1841) 1
Dr & War 84 at 93 per Sugden LC ; Edwards v Edwards (1849) 12 Beav 97 at 100 per Romilly MR ; Re Buckle, Williams v
Marson [1894] 1 Ch 286 at 288, CA (Eng) . But see Leeming v Sherratt (1842) 2 Hare 14 at 25; Rhodes v Rhodes (1859)
27 Beav 413 at 417; Haws v Haws (1747) 3 Atk 524 at 526.
3 Doe d Cock v Cooper (1801) 1 East 229 at 233; Right d Compton v Compton (1808) 9 East 267 at 272-273; Dalzell v
Welch (1828) 2 Sim 319 (issue); Carter v Bentall (1840) 2 Beav 551 at 558; Head v Randall (1843) 2 Y & C Ch Cas 231
(issue); Hedges v Harpur (1846) 9 Beav 479 (on appeal (1858) 3 De G & J 129 (issue)); Williams v Teale (1847) 6 Hare
239 at 250 (issue); Neathway v Reed (1853) 3 De GM & G 18 at 22 (surviving); Edyvean v Archer, Re Brooke [1903] AC
379, PC (issue). See also Re Warren's Trusts (1884) 26 Ch D 208 at 216 per Pearson J (settlement).
4 Williams v Jekyl Elliot v Jekyl, (1755) 2 Ves Sen 681 at 683.
5 Forth v Chapman (1720) 1 P Wms 663 at 667; Doe d Chattaway v Smith (1816) 5 M & S 126 at 132.
Page 97
[330.109]
Ejusdem generis rule
The ejusdem generis rule1 as to the meaning of general words following a series of specific descriptions
applies to wills as to other instruments, and applies to descriptions of persons and things as well as to
descriptions of property2. The rule readily gives way to any context showing contrary intention, and may
be overridden by the presumption against intestacy3, so that, where the general words occur in a clause
of the nature of a residuary gift, the ordinary wider meaning of the words is adhered to4. However, this
consideration does not assist where the general words would in their wider meaning carry a residuary
estate that is dealt with by another clause of the will5.
1 For examples of the application of the rule to wills see Trafford v Berrige (1729) 1 Eq Cas Abr 201 p 114 ('other things');
Timewell v Perkins (1740) 2 Atk 102 ('etc, or in any other thing'); Stuart v Marquis of Bute (1813) 1 Dow 73, HL ('things');
Wrench v Jutting (1841) 3 Beav 421 ('other goods'); Lamphier v Despard (1842) 2 Dr & War 59 ('other chattel property');
Barnaby v Tassell (1871) LR 11 Eq 363 at 369 ('etc'); Re Lord Londesborough, Bridgeman v Lord Fitzgerald (1880) 50 LJ
Ch 9, 43 LT 408 ('objects of vertu or taste'); Re Layard, Layard v Earl of Bessborough (1916) 85 LJ Ch 505, CA (Eng)
('portraits of myself and all my family and other portraits') (appeal withdrawn on terms (1917) 33 TLR 261, HL); Re Taylor,
Barber v Smith (1919) 147 LT Jo 253 ('jewellery and other articles of personal or domestic use or ornament' held to include
furniture); Malone v Malone [1925] 1 IR 140, CA (Ir) ('and effects of every kind'); Re Resch's Will Trusts, Le Cras v
Perpetual Trustee Co Ltd Far West Children's Health Scheme v Perpetual Trustee Co Ltd, [1969] 1 AC 514, sub nom Le
Cras v Perpetual Trustee Co Ltd Far West Children's Health Scheme v Perpetual Trustee Co Ltd, [1967] 3 All ER 915,
PC ('other personal jewellery'). As to the construction of 'etc' see further Steignes v Steignes (1703) Mos 296; Marquis of
Hertford v Lord Lowther (1843) 7 Beav 1; Twining v Powell (1845) 2 Coll 262; Chapman v Chapman (1876) 4 Ch D 800;
Re Andrew's Estate, Creasey v Graves (1902) 50 WR 471 (real estate included). For examples where the general words
were held to retain their ordinary significance see Kendall v Kendall (1828) 4 Russ 360; Arnold v Arnold (1834) 2 My & K
365 ('my wines and property in England'); Ellis v Selby (1835) 7 Sim 352 at 364; Re Kendall's Trust (1851) 14 Beav 608
('everything I die possessed of, namely '); Fisher v Hepburn (1851) 14 Beav 626; Everall v Browne (1853) 1 Sm & G 368
('other property, goods, and articles'). Although it is more difficult to infer that general words are cut down if there is an
enumeration of only one species, or a slender enumeration of species of particulars (Swinfen v Swinfen (No 4) (1860) 29
Beav 207; Campbell v M'Grain (1875) IR 9 Eq 397 at 400 per Sullivan MR ), there is no rule that general words cannot be
cut down in those circumstances (Northey v Paxton (1888) 60 LT 30; Re O'Brien, O'Brien v O'Brien [1906] 1 IR 649 at 653,
CA (Ir) ).
2 For examples in investment clauses see Edwards v Thompson (1868) 38 LJ Ch 65 ('any railway' restricted to United
Kingdom railways); Re Castlehow, Lamonby v Carter [1903] 1 Ch 352 ('any railway or other public company' restricted to
United Kingdom railways). Cf Re Stanley, Tennant v Stanley [1906] 1 Ch 131 (where the context excluded any restriction).
3 Gibbs v Lawrence (1860) 30 LJ Ch 170 at 171. See also Re Kendall's Trust (1851) 14 Beav 608; Dean v Gibson (1867)
LR 3 Eq 713 (following Bridges v Bridges (1729) 8 Vin Abr, Devise (Ob) 295 pl 13; Chalmers v Storil (1813) 2 Ves & B 222
(cases of enumeration of particulars 'viz', 'consisting of')); Chapman v Chapman (1876) 4 Ch D 800; King v George (1877)
5 Ch D 627, CA (Eng) ; Re Fleetwood, Sidgreaves v Brewer (1880) 15 Ch D 594; Re Recknell, White v Carter [1936] 2 All
ER 36. As to the presumption against intestacy see [330.114].
4 Parker v Marchant (1842) 1 Y & C Ch Cas 290 at 301; Hodgson v Jex (1876) 2 Ch D 122; Re Parrott, Parrott v Parrott
(1885) 53 LT 12.
5 Woolcomb v Woolcomb (1731) 3 P Wms 112; Mullins v Smith (1860) 1 Drew & Sm 204; Smith v Davis (1866) 14 WR
942, CA (Eng) ; Campbell v M'Grain (1875) IR 9 eq 397; Re Miller, Daniel v Daniel (1889) 61 LT 365, MacPhail v Phillips
[1904] 1 IR 155.
[330.110]
Clear words not controlled by subsequent ambiguous words
Subject to the intention shown by the whole will1, it is a leading principle of construction2 that words clear
and unambiguous in themselves3 cannot be qualified by other words unless those other words show a
Page 98
very clear exposition of the testator's meaning4; nor can the effect of such words be set aside because
there is a reason to suppose that they do not produce the effect which the testator intended that they
should produce5. In the endeavour to read the will as a consistent whole and to reconcile the various
clauses with each other6, a prior gift is not disturbed by a later gift in the same or a subsequent
testamentary instrument further than is necessary to give effect to the intentions of the testator shown by
reading the will, including all codicils, as a whole7.
1 See Re Bagshaw's Trusts (1877) 46 LJ Ch 567 at 569, CA (Eng) .
2 Goodwin v Finlayson (1858) 26 Beav 65 at 68 per Romilly MR .
3 As to the position where the words are ambiguous see [330.075], [330.087].
4 Broughton v Broughton Broughton v James, (1848) 1 HL Cas 406 at 434 per Lord Cottenham LC . See also Doe d
Hearle v Hicks (1832) 8 Bing 475, HL ; Bickford v Chalker (1854) 2 Drew 327; Kerr v Baroness Clinton (1869) LR 8 Eq
462; Conmy v Cawley [1910] 2 IR 465, CA (Ir) .
5 Earl Hardwicke v Douglas (1840) 7 Cl & Fin 795 at 815, HL .
6 See [330.095].
7 Doe d Hearle v Hicks (1832) 8 Bring 475 at 480, HL ; Young v Hassard (1841) 1 Dr & War 638 at 644; Doe d Evers v
Ward (1852) 18 QB 197 at 223; Williams v Evans (1853) 1 E & B 727 at 740; Wallace v Seymour (1872) IR 6 CL 219 at
343-344 (Ir Exch) ; Pennefather v Lloyd [1917] 1 IR 337.
[330.111]
Effect of recitals or other statements
A recital or other statement, unless obviously erroneous, may be referred to by way of explanation of a
gift in itself doubtful or ambiguous1. Where, however, the operative part is clear, it cannot be cut down by
a recital2. A recital showing that the testator is under the impression that he has in his will made a certain
disposition is evidence of an intention, inadvertently not expressed, to make that gift3. In such a case,
effect will be given to the intention if the other provisions of the will allow this to be done4, and the
inference from the recital may be sufficient to overcome and correct the terms of an express gift to the
person in question5. The court must, however, be satisfied that there has been a mistake in carrying out
the testator's intention6, or the recital is treated as erroneous and disregarded7.
Mere words of erroneous recital or recognition of indebtedness or of affection do not disclose an

intention of making a gift8, and a recital showing that the testator considered that some person
possessed a title to property independent of that of the testator prima facie gives rise to the inference
that he did not intend to make a disposition in favour of that person9.
1 Pullin v Pullin (1825) 10 Moore CP 464; Darley v Martin (1853) 13 CB 683; Grover v Raper (1856) 5 WR 134 (followed in
Re Venn, Lindon v Ingram [1904] 2 Ch 52).
2 Culsha v Cheese (1849) 7 Hare 236; Savile v Kinnaird (1865) 11 Jur NS 195.
3 Adams v Adams (1842) 1 Hare 537 at 541; Re Smith (1862) 2 John & H 594 at 598-599.
4 Bibin v Walker (1768) Amb 661; Farrer v St Catharine's College, Cambridge (1873) LR 16 Eq 19 at 24; Re Yates,
Singleton v Povah (1922) 128 LT 619. See also Law's Trustees v Gray 1921 SC 455 (no bequests by implication where
contrary to the general scheme).
5 Jordan v Fortescue (1847) 10 Beav 259. See also Milner v Milner (1748) 1 Ves Sen 106; Re Margitson, Haggard v
Haggard (1882) 48 LT 172, CA (Eng) .
6 Thompson v Whitelock (1859) 4 De G & J 490 at 500. See also Smith v Fitzgerald (1814) 3 Ves & B 2 at 8 per Grant MR
.
Page 99
7 Gordon v Hoffman (1834) 7 Sim 29; Mann v Fuller (1854) Kay 624; Re Arnold's Estate (1863) 33 Beav 163 at 171;
Mackenzie v Bradbury (1865) 35 Beav 617 at 620; Ives v Dodgson (1870) LR 9 Eq 401.
8 Re Rowe, Pike v Hamlyn [1898] 1 Ch 153 at 160, CA (Eng) . See also Dashwood v Peyton (1811) 18 Ves 27 at 46;
Murdoch v Brass (1904) 6 F 841.
9 Adams v Adams (1842) 1 Hare 537 at 540-541. See also Ralph v Watson (1840) 9 LJ Ch 328; A-G v Dillon (1862) 13 I
Ch R 127 at 133; Re Bagot, Paton v Ormerod [1893] 3 Ch 348, CA (Eng) ; Re Lee, Gibbon v Peele (1910) 103 LT 103; Re
Angus's Will Trusts, Hall v Angus [1960] 3 All ER 835, [1960] 1 WLR 1296. Cf Poulson v Wellington (1729) 2 P Wms 533;
Wilson v Piggot (1794) 2 Ves 351 at 355 (cases of settlements).
[330.112]
Alteration of the words of the will
Where the testator's main purpose and intention are ascertained to the satisfaction of the court, then if
particular expressions are found in the will which are inconsistent with that intention, although not
sufficient to control it, or which indicate an intention which the law does not permit to take effect, the
expressions may be discarded or modified by the court1. Thus, words and limitations may be supplied2,
changed3, transposed4 or rejected5 where this is justified by the immediate context or the general
scheme of the will, particularly where it is plain that a mistake has occurred6. Before supplying words,
however, the court must be satisfied not only that certain words have been omitted, but that it is certain
what words have been omitted7. No alteration may be made to the words of the will unless it is
necessary8, nor may an alteration be made merely on a conjectural hypothesis of the testator's intention,
however reasonable, in opposition to the plain and obvious sense of the instrument9.
1 Towns v Wentworth (1858) 11 Moo PCC 526 at 543. If the circumstances require it, even a forfeiture clause will be
remodelled by the court: Re Neeld, Carpenter v Inigo-Jones [1962] Ch 643, [1962] 2 All ER 335, CA (Eng) , explaining Re
Murray, Martins Bank Ltd v Dill [1955] Ch 69 at 79, [1954] 3 All ER 129 at 134, CA (Eng) , where this had been doubted.
2 Spalding v Spalding (1630) Cro Car 185 (gift over on death of eldest son in life of wife: 'without issue' supplied); Doe d
Leach v Micklem (1805) 6 East 486; Langston v Langston (1834) 2 Cl & Fin 194, HL ; Abbott v Middleton Ricketts v
Carpenter, (1855) 21 Beav 143; affd (1858) 7 HL Cas 68 ('in the event of my son dying': 'without children' supplied);
Parker v Tootal (1865) 11 HL Cas 143 ('first son of T severally and successively in tail male'; 'and other sons' introduced);
Re Hunt, Davies v Hetherington (1890) 62 LT 753 (to sons at 21 and to daughters 'who shall marry under that age'; the
words 'shall attain that age or' introduced); Re Wroe, Frith v Wilson (1896) 74 LT 302; Comiskey v Bowring-Hanbury [1905]
AC 84, HL ('in default of any disposition' construed as meaning in default of any disposition in favour of members of
particular class); Munro v Henderson [1907] 1 IR 440 (affd [1908] 1 IR 260, CA (Ir) ). See also Re Broadwell, Mackenzie v
Readman (1912) 134 LT Jo 107; Re Haygarth, Wickham v Haygarth [1913] 2 Ch 9; Re Birkin, Heald v Millership [1949] 1
All ER 1045 (gift to 'all nephews and nieces of my late sister L'; 'children' inserted after 'nephews and nieces'). See also the
cases cited in [330.113] note 4.
3 Dent v Pepys (1822) 6 Madd 350 (name of donee changed); Hart v Tulk (1852) 2 De GM & G 300 ('fourth' schedule
changed to 'fifth'); Re Northen's Estate, Salt v Pym (1884) 28 Ch D 153 (ultimate limitation changed, 'estate' being read 'C
estate'); Re Dayrell, Hastie v Dayrell [1904] 2 Ch 496 (in a direction against vesting of settled chattels in a son or any
person made tenant for life, 'or' was read 'of').
4 Luxford v Cheeke (1683) 3 Lev 125; Duke of Marlborough v Lord Godolphin (1750) 2 Ves Sen 61 at 74 per Lord
Hardwicke LC ; Marshall v Hopkins (1812) 15 East 309; Chambers v Brailsford (1816) 19 Ves 652 at 653 per Lord Eldon
LC (to make sense of a will otherwise meaningless, and to make it take some effect rather than be totally void); Hudson v
Bryant (1845) 1 Coll 681 at 685; Re Bacharach's Will Trusts, Minden v Bacharach [1959] Ch 245, [1958] 3 All ER 618
(transposition of trusts declared of different parts of residuary estate).
5 Haws v Haws (1747) 3 Atk 524 at 525; Smith v Pybus (1804) 9 Ves 566; Sherratt v Bentley (1834) 2 My & K 149 at
157-166; Jones v Price (1841) 11 Sim 557 at 569; Pasmore v Huggins (1855) 21 Beav 103; Smith v Crabtree (1877) 6 Ch
D 591; Smidmore v Smidmore (1905) 3 CLR 344. See also Ellard v Phelan [1914] 1 IR 76 ('hereinbefore').
6 Sims v Doughty (1800) 5 Ves 243 at 247; Re MacAndrew's Will Trusts, Stephens v Barclays Bank Ltd [1964] Ch 704,
[1963] 2 All ER 919 (words 'or widow' in an otherwise plain scheme of disposition rejected as 'a senseless and
incongruous insertion'). Where either or any of two or more alterations may be satisfactory, the court has to inquire which
in the circumstances is most probably the intention: Mason v Baker (1856) 2 K & J 567; Wills v Wills (1875) LR 20 Eq 342.
Page 100
7 Re Neeld, Carpenter v Inigo-Jones [1962] Ch 643 at 677-678, [1962] 2 All ER 335 at 353, CA (Eng), per Upjohn LJ . See
also Re Follett, Barclays Bank Ltd v Dovell [1955] 2 All ER 22, [1955] 1 WLR 429, CA (Eng) ; Re Whitrick, Sutcliffe v
Sutcliffe [1957] 2 All ER 467, [1957] 1 WLR 884, CA (Eng) .
8 Eden v Wilson (1852) 4 HL Cas 257 at 284; Peacock v Stockford (1853) 3 De GM & G 73 at 77; Abbott v Middleton
(1855) 21 Beav 143 at 149 per Romilly MR (when the change or insertion 'is required to give to the whole sentence one
uniform and consistent meaning, which without it would be irrational or repugnant', it must be made (affd on appeal (1858)
7 HL Cas 68 at 94 per Lord St Leonards): Lady Langdale v Briggs, ex p Lady Bacon, ex p Martineau (1873) 28 LT 467 at
469 (affd sub nom Martineau v Briggs (1875) 45 LJ Ch 674, 23 WR 889, HL ). In Hope v Potter (1857) 3 K & J 206 at 209,
Wood V-C classified the cases of supplying words into two categories: (1) where there is a necessary implication to avoid
an intestacy; (2) where a contingent limitation over is curtailed by, or is to be reconciled with, a previous gift, such as cases
where 'in default of issue' has been read 'in default of such issue'.
9 Abbott v Middleton Ricketts v Carpenter, (1855) 21 Beav 143; affd (1858) 7 HL Cas 68 at 81, 114; Mellor v Daintree
(1886) 33 Ch D 198 at 205. See also Hope v Potter (1857) 3 K & J 206; Campbell v Bouskell (1859) 27 Beav 325; Re
Mitchell, Mitchell v Mitchell (1913) 108 LT 180; Re Caldwell's Will Trusts, Jenyns v Sackville West [1971] 1 All ER 780,
[1971] 1 WLR 181.
[330.113]
Examples of changing or supplying words
Where two clauses in a will run parallel to each other (as in the case of clauses settling the separate
share of the donees) except for a difference which may have been caused by the omission of some
words or other mistake in copying, the court may change the wording or supply the missing words1.
Further, the scheme of the will as a whole may be sufficiently clear for its spirit to overcome the letter of a
particular clause, leading to the necessity of making a suitable implication in the language2. Even in such
a case, however, the court refuses to make any alteration where the clauses, read as they stand, are
clear and unambiguous and the suggestion of mistake rests only on conjecture3.
Another example is where a power of appointment, or trust in default of appointment, is inadvertently

omitted, but the court is able to determine what the omitted words were4. There are many cases where
'and' has been changed by the court into 'or'5, and vice versa6.
1 Re Redfern, Redfern v Bryning (1877) 6 Ch D 133; Re Northen's Estate, Salt v Pym (1884) 28 Ch D 153; Phillips v Rail
(1906) 54 WR 517.
2 Re Doland's Will Trusts, Westminster Bank Ltd v Phillips [1970] Ch 267, [1969] 3 All ER 713, applying the authorities
relating to secondary interpretation of the language used.
3 Crawford's Trustees v Fleck 1910 SC 998.
4 Re Cory, Cory v Morel [1955] 2 All ER 630, [1955] 1 WLR 725; Re Riley's Will Trusts, Riley v Riley [1962] 1 All ER 513,
[1962] 1 WLR 344.
5 See Williams on Wills (7th Edn, 1995) vol 1 ch 56; Haws v Haws (1747) 3 Atk 524; Jackson v Jackson (1749) 1 Ves Sen
217; Burleigh v Pearson (1749) 1 Ves Sen 281; Stubbs v Sargon (1837) 2 Keen 255 at 273; Stapleton v Stapleton (1852)
2 Sim NS 212; Maynard v Wright (1858) 26 Beav 285 (where the alternative was that the will was void for uncertainty). For
instances where the court declined to make the change see Malden v Maine (1855) 2 Jur NS 206; Grey v Pearson (1857)
6 HL Cas 61; Seccombe v Edwards (1860) 28 Beav 440; Earl of Malmesbury v Countess of Malmesbury Phillipson v
Turner, (1862) 31 Beav 407; Coates v Hart (1863) 32 Beav 349 (on appeal 3 De GJ & Sm 504 at 516); Barker v Young
(1864) 33 Beav 353; Re Sanders' Trusts (1866) LR 1 Eq 675.
6 Nichols v Tolley (1700) 2 Vern 388; Read v Snell (1743) 2 Atk 642 at 645; Eccard v Brooke (1790) 2 Cox Eq Cas 213;
Denn d Wilkins v Kemeys (1808) 9 East 366; Horridge v Ferguson (1822) Jac 583; Green v Harvey (1842) 1 Hare 428;
Parkin v Knight (1846) 15 Sim 83; Lachlan v Reynolds (1852) 9 Hare 796 at 798 (to 'children living at that period or their
heirs'); Shand v Kidd (1854) 19 Beav 310 (to a class, or the issue of those then dead); Maude v Maude (1856) 22 Beav
290; Greenway v Greenway (1860) 2 De GF & J 128 at 129. For cases of the enumeration disjunctively of the objects of a
power of appointment see Brown v Higgs (1799) 4 Ves 708 (reheard (1800) 5 Ves 495 (affd (1801) 8 Ves 561); (1813) 18
Ves 192, HL ); Longmore v Broom (1802) 7 Ves 124; Penny v Turner (1846) 15 Sim 368; Salusbury v Denton (1857) 3 Jur
NS 740; Re White's Trusts (1860) John 656. See also the cases cited in [330.172] note 5. In Re Hayden, Pask v Perry
[1931] 2 Ch 333, where there was a gift to a class of persons 'or their issue', the change of 'or' into 'and' enabled 'their
Page 101
issue' to be read as words of limitation, and there being three members of the class, each took an estate tail in an
undivided third part. For instances where the court refused to change 'or' into 'and' see Whitcher v Penley (1846) 9 Beav
477; Penley v Penley (1850) 12 Beav 547; Blundell v Chapman (1864) 33 Beav 648 (cases of substitutional gifts to
children). See further [330.172].
Page 102
Administration and Succession/(1) Wills/(3) Construction by the Court/ C. Principles of Construction/ (iii)
Presumptions/ (A) Presumption against Intestacy
(iii) Presumptions
(A) Presumption against Intestacy
[330.114]
Presumption in doubtful cases
A testator may well intend to die partially intestate, for, when he makes a will, he is testate only so far
as he has expressed himself in his will1. Accordingly, there is no reason for the court in all cases to lean
too heavily against a construction that involves a partial intestacy2. Where, however, the construction of
the will is doubtful, the court acts on the presumption that the testator did not intend to die either wholly
or even partially intestate, provided that on a fair and reasonable construction there is no ground for a
contrary conclusion3. Where the will shows an intention of the testator to dispose of the whole of his
property, but, as regards the interests created, two constructions are possible, according to one of
which the will effects a complete disposition of the whole, but according to the other the will leaves a
gap, the court inclines to the former construction4.
Although the avoidance of intestacy is to be regarded in construing doubtful expressions, it is not

enough to induce the court to give an unnatural meaning to a word, or to construe plain words
otherwise than according to their plain meaning5.
1 Re Edwards, Jones v Jones [1906] 1 Ch 570 at 574, CA (Eng), per Romer LJ . See also Jackson v Craig (1851) 20 LJ
Ch 204 (property wholly undisposed of); Webber v Stanley (1864) 16 CBNS 698 at 760. See also Williams on Wills (7th
Edn, 1995) vol 1 ch 51. As to intestate succession generally see [330.645] and following.
2 Re Wragg, Hollingsworth v Wragg [1959] 2 All ER 717 at 723, [1959] 1 WLR 922 at 929, CA (Eng), per Lord Evershed
MR . As to the force of the presumption against intestacy see [330.115].
3 Doe d Wall v Langlands (1811) 14 East 370 at 372-373; Edgeworth v Edgeworth (1869) LR 4 HL 35 at 40-41; Re
Redfern, Redfern v Bryning (1877) 6 Ch D 133 at 136; Re Harrison, Turner v Hellard (1885) 30 Ch D 390 at 393, CA
(Eng), per Lord Esher MR ; Kirby-Smith v Parnell [1903] 1 Ch 483 at 489; Re Messenger's Estate, Chaplin v Ruane
[1937] 1 All ER 355; Re Turner, Carpenter v Staveley [1949] 2 All ER 935; Re Stevens, Pateman v James [1952] Ch
323, [1952] 1 All ER 674. See also Re Bassett's Estate, Perkins v Fladgate (1872) LR 14 Eq 54 at 57. For examples of
references to the leaning against intestacy in doubtful cases see Royle v Hamilton (1799) 4 Ves 437 at 439; Vauchamp v
Bell (1822) 6 Madd 343 at 348; Dobson v Banks (1863) 32 Beav 259 at 260; Re Salter, Farrant v Carter (1881) 44 LT
603 at 604; Re Henton, Henton v Henton (1882) 30 WR 702; Re Bright-Smith, Bright-Smith v Bright-Smith (1886) 31 Ch
D 314 at 319; Re Lady Monck's Will, Monck v Croker [1900] 1 IR 56, CA (Ir) .
4 Ibbetson v Beckwith (1735) Cas temp Talb 157 at 161. See also Pinney v Marriott (1863) 32 Beav 643.
5 Re Benn, Benn v Benn (1885) 29 Ch D 839 at 847, CA (Eng) ; Re Edwards, Jones v Jones [1906] 1 Ch 570 at 574, CA
(Eng) ; Re Powell, Bodvel-Roberts v Poole [1918] 1 Ch 407.
[330.115]
Force of presumption
Page 103
The force of the presumption against intestacy varies according to the context and the circumstances1.
It applies especially to property which the testator has at the date of the will, but is not so strong as
regards property that he has not yet acquired at that date2. Introductory statements setting out the
testator's intention to dispose of all his worldly estate3, or the appointment of executors4, or the fact that
the objects of the testator's bounty are his wife and all his children, his eldest son being treated alike
with the rest5, are strong indications in favour of a universal disposition of all the testator's property.
The presumption applies with particular force to the construction of a residuary gift; where the residue is
given, every presumption is made that the testator did not die intestate6.
Where, according to one of several possible constructions of the words, a gift would be void for illegality
and a partial intestacy would arise, then if there is no direct evidence of intention, the presumption
against intestacy is an additional reason for an alternative construction that would avoid the illegality7.
1 See Hall v Hall [1892] 1 Ch 361 at 367, CA (Eng) . As to the presumption see [330.114]. As to intestate succession
generally see [330.645] and following.
2 Re Methuen and Blore's Contract (1881) 16 Ch D 696 at 698-699.
3 Ibbetson v Beckwith (1735) Cas temp Talb 157; Jackson v Hogan (1776) 3 Bro Parl Cas 388; Goodright d Baker v
Stocker (1792) 5 Term Rep 13; Doe d Bates v Clayton (1806) 8 East 141 at 147; Doe d Wall v Langlands (1811) 14 East
370 at 372; Pocock v Bishop of Lincoln (1821) 6 Moore CP 159; Hughes v Pritchard (1877) 6 Ch D 24 at 27, CA (Eng) .
4 Re Bassett's Estate, Perkins v Fladgate (1872) LR 14 Eq 54 at 57. See also Re Messenger's Estate, Chaplin v Ruane
[1937] 1 All ER 355; Re Turner, Carpenter v Staveley [1949] 2 All ER 935. However see Re Stevens, Pateman v James
[1952] Ch 323, [1952] 1 All ER 674 ('I give, devise and bequeath unto' three named persons; no reference to property
given; testatrix held to have intended to give all her property although no executors were appointed).
5 Hall v Hall [1892] 1 Ch 361 at 367, CA (Eng) . See also Lachlan v Reynolds (1852) 9 Hare 796 at 799; O'Toole v
Browne (1854) 3 E & B 572 at 585.
6 Philipps v Chamberlaine (1798) 4 Ves 51 at 59; Booth v Booth (1799) 4 Ves 399 at 407; Milsom v Awdry (1800) 5 Ves
465 at 466; Bolger v Mackell (1800) 5 Ves 509 at 513; Leake v Robinson (1817) 2 Mer 363 at 386; Goodman v
Goodman (1847) 1 De G & Sm 695 at 699; Wiggins v Wiggins (1852) 2 Sim NS 226 at 233; Re Liverpool Dock Acts, Re
Colshead's Will Trusts (1852) 2 De G & J 690 at 692; Bentley v Oldfield (1854) 19 Beav 225 at 232; Gosling v Gosling
John (1859) 265 at 274; Fay v Fay (1880) 5 LR Ir 274 at 282.
7 Montgomerie v Woodley (1800) 5 Ves 522; Taylor v Frobisher (1852) 5 De G & Sm 191 at 199; Re Edmondson's
Estate (1868) LR 5 Eq 389; Re Bevan's Trusts (1887) 34 Ch D 716 at 718; Re Coppard's Estate, Howlett v Hodson
(1887) 35 Ch D 350 (as explained in Re Wenmoth's Estate, Wenmoth v Wenmoth (1887) 37 Ch D 266 at 270).
[330.116]
Limits of presumption
The presumption against intestacy gives no assistance to the court where the contest is not between
testacy and intestacy, but between two gifts in the same will1. Further, it is not enough to satisfy the
court that intestacy was not intended; in order to oust the title of the persons claiming on intestacy, it
must be shown distinctly that there are words in the will sufficient to constitute a gift of the property in
question2, expressly or by implication, to some particular donee3, and the burden of proof is on the
alleged donee4. However, once it is shown that the testator has manifested an intention of making
some gift of the property, and thus excluding the persons entitled on intestacy to a certain extent, there
is an end of the claim of those persons and, if the gift prima facie extends to the whole property, the
burden of proof is then shifted to those claiming on intestacy to show to what extent the gift is limited5.
1 Re Price, Price v Newton [1905] 2 Ch 55 at 58 per Farwell J . As to the presumption see [330.114]. As to intestate
succession generally see [330.645] and following.
2 Enohin v Wylie (1862) 10 HL Cas 1 at 18-21.

Page 104
3 Hall v Warren (1861) 9 HL Cas 420 at 433-435. See also Drake v Drake (1860) 8 HL Cas 172 at 180; Re Hobson,
Barwick v Holt [1912] 1 Ch 626 at 634; Re Wynn, Landolt v Wynn [1983] 3 All ER 310, sub nom Re Wynn [1984] 1 WLR
237.
4 Wilce v Wilce (1831) 7 Bing 664 at 672; Hall v Warren (1861) 9 HL Cas 420 at 435.
5 Midland Counties Rly Co v Oswin (1844) 1 Coll 74 at 78 per Knight Bruce V-C .
Page 105
Presumptions/ (B) Presumptions of Legality and of Knowledge of the Testator
(B) Presumptions of Legality and of Knowledge of the Testator
[330.117]
No departure from plain words to escape illegality
The construction of the will is in the first place considered quite apart from the question of the legality of
the provisions of the will1. If the words of the will are plain, they may not be struck out2, or taken in a
sense different from that which they plainly bear3, for the purpose of escaping from the consequences
of invalidity under some rule of law, or even because it appears that the testator may have
misunderstood the legal effect of the various species of gifts, and may have used language the legal
interpretation of which may not carry out the intentions he had in his mind4.
1 Pearks v Moseley (1880) 5 App Cas 714 at 719, HL . See also Taylor v Frobisher (1852) 5 De G & Sm 191 at 197; and
[330.092] note 1.
2 Heasman v Pearse (1871) 7 Ch App 275 at 283; Re Coyte, Coyte v Coyte (1887) 56 LT 510 at 513.
3 A-G v Williams (1794) 2 Cox Eq Cas 387 at 388; Thellusson v Woodford (1799) 4 Ves 227 at 329; Mainwaring v
Beevor (1849) 8 Hare 44 at 48; Speakman v Speakman (1850) 8 Hare 180 at 186; Tatham v Drummond (1864) 4 De GJ
& Sm 484 at 486; Re Hume, Public Trustee v Mabey [1912] 1 Ch 693.
4 Higgins v Dawson [1902] AC 1 at 11, HL . See also Egerton v Earl Brownlow (1853) 4 HL Cas 1 at 159; Nunn v
Hancock (1868) 16 WR 818 at 819.
[330.118]
Presumption in ambiguous cases
Where the wording of the will is ambiguous, and appears according to one construction to offend
against some rule of law and to be partially invalid, but is fairly capable of another construction that
avoids the objection, the latter is presumed to be the testator's intention1. The court has an inclination
to believe, if reasonably possible, that the testator did not intend to transgress the law2.
1 Martelli v Holloway (1872) LR 5 HL 532 at 548; Pearks v Moseley (1880) 5 App Cas 714 at 719; Von Brockdorff v
Malcolm (1885) 30 Ch D 172 at 179; Re Pounder, Williams v Pounder (1886) 56 LJ Ch 113 at 114; Re Sanford, Sanford
v Sanford [1901] 1 Ch 939 at 943; Re Mortimer, Gray v Gray [1905] 2 Ch 502 at 506, CA (Eng) ; Re Earl of Stamford and
Warrington, Payne v Grey [1912] 1 Ch 343 at 365, CA (Eng) .
2 Leach v Leach (1843) 2 Y & C Ch Cas 495 at 499 per Knight Bruce V-C .
Page 106
Presumptions/ (C) Presumption Favouring Relatives or Persons having a Claim on the Testator
(C) Presumption Favouring Relatives or Persons having a Claim on the Testator
[330.119]
Presumption in favour of children
There is no presumption, in the case of a will, that the testator's children are intended to be provided for
or to have equal benefits1. In construing a will the only guide is the testator's language, and there is no
supposition that any person is intended to take except those who are described as takers2.
If, however, the language in a will expressly providing for the testator's family is ambiguous3, then, in
the absence of direct evidence of his intention, the court, so far as it can, prefers that construction
which will most benefit the testator's family generally, on the ground that this must more nearly
correspond with his intention4. In such cases, the court construes the will so as to include as many
children as possible5, and to vest their interests on attaining majority, and so as not to make the
interests of children who attain majority dependent upon surviving their parents6.
1 Re Crosse's Will (1863) 9 Jur NS 429 at 430. See also Abbott v Middleton Ricketts v Carpenter, (1855) 21 Beav 143;
affd (1858) 7 HL Cas 68 at 93; Re Jodrell, Jodrell v Seale (1890) 44 Ch D 590 at 605, CA (Eng) ; affd sub nom
Seale-Hayne v Jodrell [1891] AC 304, HL .
2 Abbott v Middleton Ricketts v Carpenter, (1855) 21 Beav 143; affd (1858) 7 HL Cas 68 at 93 per Lord Cranworth .
See also Tucker v Harris (1832) 5 Sim 538 at 543.
3 Bright v Rowe (1834) 3 My & K 316 at 322.
4 Farrant v Nichols (1846) 9 Beav 327 at 330; Bythesea v Bythesea (1854) 23 LJ Ch 1004 at 1006; Re Hamlet, Stephen
v Cunningham (1888) 39 Ch D 426 at 433-434, CA (Eng) .
5 Bouverie v Bouverie (1847) 2 Ph 349 at 351; Lee v Lee (1860) 1 Drew & Sm 85 at 87; White v Hill (1867) LR 4 Eq 265
at 271; Williams v Haythorne Williams v Williams, (1871) 6 Ch App 782 at 785.
6 This presumption is specially applicable to gifts of portions in a settlement (Emperor v Rolfe (1748-9) 1 Ves Sen 208;
Howgrave v Cartier (1814) 3 Ves & B 79 at 91; but it applies also to wills (Hallifax v Wilson (1809) 16 Ves 168 at 172;
Jackson v Dover (1864) 2 Hem & M 209 at 215; Re Knowles, Nottage v Buxton (1882) 21 Ch D 806; Re Hamlet,
Stephen v Cunningham (1888) 39 Ch D 426 at 433, CA (Eng) ; Re Roberts, Percival v Roberts [1903] 2 Ch 200 at 204
per Joyce J ('in case of ambiguity or doubt that construction is to be favoured which will allow of a child who takes a
vested interest making such provision as is usual for his family'); Duffield v M' Master [1906] 1 IR 333, CA (Ir) ). The
different character of a will is a circumstance to be weighed in applying the rule: Farrer v Barker (1852) 9 Hare 737 at
744; Tucker v Harris (1832) 5 Sim 538 at 543. It is not clear whether the rule applies to grandchildren, or other persons to
whom the testator is not in loco parentis: see Re Hamlet, Stephen v Cunningham (1888) 38 Ch D 183 at 190 (on appeal
39 Ch D 426 at 433-434, CA (Eng) ) where Cotton LJ differing from the view expressed in the court below, thought that
the rule would apply to such persons. See also Farrer v Barker (1852) 9 Hare 737 at 744.
[330.120]
Presumption in favour of other persons
Where the words of the will are ambiguous, then, in the absence of direct evidence of the testator's
intention, the court may sometimes be assisted by the presumptions that, in the absence of special
circumstances, relatives of equal degree are of equal importance to a testator as recipients of his
Page 107
bounty1, and that, as a rule, a testator does not pass over a near relative for the purpose of benefiting
more remote relatives, or over any relative or other person having a claim on him2, or with whom he
was intimate3, for the purpose of benefiting relatives having no claim or strangers. The latter
presumption, however, gives no assistance to the court in a contest between persons related in equal
degree to the testator4, nor are any of these presumptions applicable unless their application accords
with the actual words of the will5.
1 Hewet v Ireland (1718) 1 P Wms 426; Jenkins v Hughes (1860) 8 HL Cas 571 at 590; Swift v Swift (1863) 32 LJ Ch
479 at 480; Heasman v Pearse (1871) 7 Ch App 275 at 284; Selby v Whittaker (1877) 6 Ch D 239 at 249, CA (Eng), per
James LJ ; Re Prosser, Prosser v Griffith [1929] WN 85.
2 See Re Gregory's Settlement and Will (1865) 34 Beav 600 at 602 (where the testator's godson was preferred to his
brother, the description applying partly to both), but it is doubtful whether this decision would now be followed.
3 Careless v Careless (1816) 1 Mer 384 at 389. Evidence of the testator's degrees of intimacy with the various claimants
is admitted for the purpose of applying this presumption.
4 Re Price, Price v Newton [1905] 2 Ch 55 at 58.
5 Beaudry v Barbeau [1900] AC 569 at 575, PC .
[330.121]
Presumption in favour of heir or next of kin
Formerly1, in order to avoid holding the will void for uncertainty2, the court favoured the heir3 or head of
a family in order of inheritance where the words of the will were ambiguous4. It is doubtful whether any
similar rule now exists in favour of the first person entitled on intestacy. That person takes, if at all, not
under any presumed intention of the testator, but for want of any clear indication that someone else is
to take5.
1 This appears at one time to have been a principle of public policy at common law: see Wild's Case (1599) 6 Co Rep
16b at 17a; 2 Pollock and Maitland's History of English Law (2nd Edn) 328. 'If the language of the will is plain, it must be
given effect to, and cannot be made to bend to a supposed predilection in favour of male offspring': George Taylor
Fulford v Dorothy Fulford Hardy [1909] AC 570 at 574, PC, per Lord Dunedin .
2 As to uncertainty see [330.122]-[330.126].
3 Although descent to the heir is in general abolished, equitable interests in real estate may still be created by reference
to the heir: see [330.184] note 1.
4 The heir, or head of a family in order of inheritance, has been held to take under limitations to the 'nearest' or 'nearest
and most deserving' of that family: see Thellusson v Lord Rendlesham (1859) 7 HL Cas 429 at 512; Power v Quealy
(1878) 2 LR Ir 227 (affd 4 LR Ir 20, CA (Ir) ). See also Doe d Winter v Perratt (1843) 9 Cl & Fin 606, HL ; Chapman's
Case (1574) 3 Dyer 333b. The context of the will may show that the testator did not intend the order of inheritance to be
observed: Thomason v Moses (1842) 5 Beav 77.
5 Mills v Farmer (1815) 19 Ves 483 at 484.

Page 108
Administration and Succession/(1) Wills/(3) Construction by the Court/ C. Principles of Construction/ (iv)
Uncertainty
(iv) Uncertainty
[330.122]
Circumstances in which a gift is held void for uncertainty
The absurd or irrational nature of a disposition clearly expressed, or the difficulties in interpreting a
disposition ambiguously expressed, are not enough to render the disposition void for uncertainty; to be
void for this reason, it must be utterly impossible to put a meaning upon it1.
The court has always been reluctant to hold a gift void for uncertainty, and has always adopted the
benevolent rule that if there is ever so little reason in favour of one construction of an ambiguous gift
more than another, the adoption of the construction favoured is at least nearer the testator's intention
than that the whole disposition should be void and the persons entitled on an intestacy let in2. In such
cases, extrinsic evidence has always been admitted to elucidate the testator's meaning3.
1 Re Roberts, Repington v Roberts-Gawen (1881) 19 Ch D 520 at 529, CA (Eng) . See also Mason v Robinson (1825) 2
Sim & St 295 at 298; Doe d Winter v Perratt (1843) 6 Man & G 314 at 361-362, HL .
2 Doe d Winter v Perratt (1843) 6 Man & G 314 at 359, HL, per Lord Brougham . See also Oddie v Woodford (1821) 3 My
& Cr 584 (followed in Doe d Angell v Angell (1846) 9 QB 328 at 354); Bristow v Bristow (1842) 5 Beav 289 at 292;
Stephens v Powys (1857) 1 De G & J 24.
3 As to the avoidance of uncertainty see [330.123].
[330.123]
Avoidance of uncertainty
Uncertainty may be avoided by the proper admission of extrinsic evidence1, which in certain
circumstances may include evidence of the testator's intention2, but, if such evidence is insufficient to
resolve the ambiguity3 the gift fails for uncertainty4.
Uncertainty may also be avoided by reference to the context, or by application of the maxim id certum
est quod certum reddi potest5. Thus, indefinite words added to a gift do not render it uncertain if the gift
is substantially ascertained from the nature of the case6, and no objection can arise where, although the
amount of the gift is indefinite, it is stated to be for a particular purpose and the court can by inquiry
ascertain what is the sum sufficient or necessary to answer that purpose7. Further, a testator may validly
appoint persons to select the objects of his bounty, provided that the objects are individual persons or
corporations8, but no delegation of the testamentary power is permitted where the gift is for purposes to
be selected9, unless the purposes from which the selection is to be made are confined to charitable
purposes. If the extent of the testator's bounty is to be measured by a formula, he may leave it to his
executors to determine the precise amount, even though without that determination there would be no
certainty10.
1 As to the admission of extrinsic evidence see [330.073] and following.

Page 109
2 See [330.122].
3 Richardson v Watson (1833) 4 B & Ad 787; Blundell v Gladstone (1844) 14 Sim 83; Asten v Asten [1894] 3 Ch 260.
4 Thomas d Evans v Thomas (1796) 6 Term Rep 671; Drake v Drake (1860) 8 HL Cas 172; Re Stephenson, Donaldson v
Bamber [1897] 1 Ch 75.
5 Ie that which is capable of being made certain ought to be treated as certain: see eg Adams v Jones (1852) 9 Hare 485
at 486. A blank in a description does not make a gift uncertain if certainty is given by the context and circumstances
admissible in evidence: Price v Page (1799) 4 Ves 680; Phillips v Barker (1853) 1 Sm & G 583; Re Harrison, Turner v
Hellard (1885) 30 Ch D 390, CA (Eng) ; Re Wyatt, Furniss v Phear (1888) 36 WR 521.
6 Oddie v Brown (1859) 4 De G & J 179 at 186-194 ('or thereabouts'), explaining Curtis v Lukin (1842) 5 Beav 147 (until
leases 'nearly' expired). See also Re Hunter's Settlement Trust, Elliott v Hunter (1939) 83 Sol Jo 339.
7 Dundee Magistrates v Morris (1858) 3 Macq 134, HL . See also Broad v Bevan (1823) 1 Russ 511n (considered in
Abraham v Alman (1826) 1 Russ 509 at 516); Jackson v Hamilton (1846) 3 Jo & Lat 702 at 709 (sufficient to remunerate
executors for their trouble); Edwardes v Jones (No 2) (1866) 35 Beav 474; Re Mills, Midland Bank Executor and Trustee
Co Ltd v United Birmingham Hospitals Board of Governors [1953] 1 All ER 835, [1953] 1 WLR 554 ('such sum as shall be
necessary to endow a bed'); Re Golay, Morris v Bridgewater [1965] 2 All ER 660, [1965] 1 WLR 969 (bequest of
'reasonable income' valid).
8 Re Smith, Johnson v Bright-Smith [1914] 1 Ch 937 at 948 per Joyce J .
9 See eg Chichester Diocesan Fund and Board of Finance Inc v Simpson [1944] AC 341, [1944] 2 All ER 60, HL . As to
the extent to which equity will recognise a trust which is not for the benefit of ascertained or ascertainable beneficiaries see
generally Re Endacott, Corpe v Endacott [1960] Ch 232, [1959] 3 All ER 562, CA (Eng) .
10 Re Conn, Conn v Burns [1898] 1 IR 337, where portions were to be determined by the wife and executors according to
the value of the services the daughters might have rendered the family, and, in the case of marriage portions, according to
the match made.
[330.124]
Gifts stated in the alternative
Where the amount of a gift is stated in the alternative1, the gift may be construed, according to the
construction most favourable to the donee, as a gift of the larger amount2, and a direction to apply a sum
not exceeding a stated amount for a particular purpose may be similarly construed as a gift of the stated
amount, after any discretion applying to the gift is spent3.
2 Seale v Seale (1715) 1 P Wms 290.
3 Thompson v Thompson (1844) 1 Coll 381 at 395-397 (following Cope v Wilmot (1772) Amb 704); Gough v Bult (1848)
16 Sim 45.
[330.125]
Gift to one of a set of persons
Where the donee is defined as one of a set of persons satisfying some description (as in the case of a
gift to one of the sons of a named person), and there are in existence several persons in the set, the gift
is void for uncertainty unless there is sufficient evidence1 to show what was the testator's intention2.
Where, however, at the date of the will there are no persons in existence who are members of the set or
who satisfy the description, the gift may admit of being construed to mean the person who first becomes
a member of the set or satisfies the description3.
Page 110
1 As to the evidence admissible see [330.122].
2 Dowset v Sweet (1753) Amb 175, explained in Del Mare v Robello (1792) 1 Ves 412 at 415. See also Hampshire v
Peirce (1751) 2 Ves Sen 216. As to class gifts generally see [330.156] and following.
3 Bate v Amherst (1663) T Raym 82; Blackburn v Stables (1814) 2 Ves & B 367; Powell v Davies (1839) 1 Beav 532;
Ashburner v Wilson (1850) 17 Sim 204.
[330.126]
Examples of gifts void for uncertainty
Gifts void for uncertainty include:
(1) gifts that are wanting in particularity of expression, as to the subject1 or object2 of the gift,
where no person is nominated by the testator or other means provided for giving
particularity, or such means fail3, and no rule of construction sufficiently assists the court4;
(2) gifts that depend upon an infinite number of persons or things5;
(3) gifts that may have two or more alternative meanings, where there is nothing in the context
or the admissible evidence6, or any rule of construction, to enable the court to resolve the
ambiguity7;
(4) gifts that are to be applied in perpetuity for purposes which cannot be construed as
necessarily charitable, and include, without the possibility of severance, purposes for which
a perpetual gift is not allowed8.
1 Peck v Halsey (1726) 2 P Wms 387 ('some of my best linen'); Jubber v Jubber (1839) 9 Sim 503 ('a handsome gratuity').
See also Re Campsill, Reading v Hinde (1910) 128 LT Jo 548 (where the testamentary document consisted of a list of
names with sums of money); Jones d Henry v Hancock (1816) 4 Dow 145, HL ; White v White (1908) 28 NZLR 129 ('a
small portion of what is left'). The word 'all', used as a noun, is regarded as not uncertain: Re Shepherd, Mitchell v Loram
(1914) 58 Sol Jo 304.
2 For cases of uncertainty in relation to donees see [330.021].
3 Boyce v Boyce (1849) 16 Sim 476 (devise to be ascertained by a person who was dead). See also Jerningham v Herbert
(1828) 4 Russ 388 (devise to be ascertained by future act of testatrix made impossible by her mental disorder).
4 In Re Bassett's Estate, Perkins v Fladgate (1872) LR 14 Eq 54 at 57 (followed in Re Byrne, Byrne v Byrne (1898) 24
VLR 832), the presumption against intestacy supplied the omission of any description of subject matter. In Mohun v Mohun
(1818) 1 Swan 201, a similar omission made the gift void.
5 Re Moore, Prior v Moore [1901] 1 Ch 936 ('all the persons living at my death').
6 As to the admissibility of evidence in such cases, whether for identification or otherwise see [330.073] and following.
7 Eg where the subject matter is one of a number of things and the testator does not give the choice to the donee: Asten v
Asten [1894] 3 Ch 260, commenting on Richardson v Watson (1833) 4 B & Ad 787. Where a primary gift payable out of the
income of a fund fails, and the extent of the gift is not sufficiently defined, a gift of the balance of the income fails for
uncertainty: Re Porter, Porter v Porter [1925] Ch 746.
8 See eg Chichester Diocesan Fund and Board of Finance Inc v Simpson [1944] AC 341, [1944] 2 All ER 60, HL .
Page 111
Administration and Succession/(1) Wills/(3) Construction by the Court/ C. Principles of Construction/ (v)
Misdescription of Property or Persons
(v) Misdescription of Property or Persons
[330.127]
Effect where description is accurate
If all the terms of description fit some particular property1, that property and nothing more passes; the
description will not be enlarged so as to include anything which some of those terms do not accurately
fit2, nor will it be restricted so as not to include some part of the property accurately described3. Where a
description is certain, additional words do not affect it, but where the first description is uncertain,
additional words may remove the uncertainty4. The accurate use in a will of the name of an individual or
society creates a strong presumption that the person so described is the donee intended by the testator,
although it may not exclude further inquiry as to the person intended5.
1 Re Seal, Seal v Taylor [1894] 1 Ch 316, CA (Eng) .
2 Webber v Stanley (1864) 16 CBNS 698 (dissenting from Stanley v Stanley (1862) 2 John & H 491); Hardwick v Hardwick
(1873) LR 16 Eq 168 at 175; Whitfield v Langdale (1875) 1 Ch D 61 at 74; Re Seal, Seal v Taylor [1894] 1 Ch 316 at 323,
CA (Eng) . See also Doe d Brown v Brown (1809) 11 East 441; Doe d Browne v Greening (1814) 3 M & S 171; Doe d
Tyrrell v Lyford (1816) 4 M & S 550; Okeden v Clifden (1826) 2 Russ 309; Miller v Travers (1832) 8 Bing 244; Doe d
Hubbard v Hubbard (1850) 15 QB 227 at 245; Slingsby v Grainger (1859) 7 HL Cas 273; Homer v Homer (1878) 8 Ch D
758, CA (Eng) ; Corballis v Corballis (1882) 9 LR Ir 309.
3 Down v Down (1817) 1 Moore CP 80; Pullin v Pullin (1825) 10 Moore CP 464; Doe d Templeman v Martin (1833) 4 B &
Ad 771.
4 See Doe d Harris v Greathed (1806) 8 East 91 at 103-104.
5 National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to
Children [1915] AC 207, HL . Cf Re Meyers, London Life Association v St George's Hospital [1951] Ch 534, [1951] 1 All
ER 538; Re Satterthwaite's Will Trusts, Midland Bank Executor and Trustee Co Ltd v Royal Veterinary College [1966] 1 All
ER 919, [1966] 1 WLR 277, CA (Eng) .
[330.128]
Effect where description is inaccurate
If, when examined, the words of description do not fit any subject with accuracy, and if there must be
some modification of them1 in order to place a sensible construction on the will, then the whole must be
looked at fairly in order to see what are the leading words of description and what is the subordinate
matter, and generally how the subject, whether the property or the donee, intended by the testator can
be identified2. For this purpose extrinsic evidence has always been received3, and this may now include
evidence of the testator's intention in certain circumstances. In such cases, the words are presumed to
be a misdescription of a subject existing and with regard to which the will may validly operate4. Where,
however, the context shows that the testator was not merely misdescribing an actually existing subject,
but was under an erroneous impression that the subject actually did exist as described, or that he could
dispose of it, the gift may fail5.
Page 112
1 As to modifying the words of the will see [330.112] and [330.113].
2 See for example Doe d Humphreys v Roberts (1822) 5 B & Ad 407; Re Ofner, Samuel v Ofner [1909] 1 Ch 60, CA (Eng)
.
3 Hardwick v Hardwick (1873) LR 16 Eq 168; Re Bright-Smith, Bright-Smith v Bright-Smith (1886) 31 Ch D 314 at 317.
4 The presumption is that a designation in general words of the property intended to be affected by a will refers prima facie
to that property only on which the will is capable of operating (Maxwell v Maxwell (1852) 2 De GM & G 705 at 715
(approving Wentworth v Cox (1822) 6 Madd 363 at 364); Baring v Ashburton (1886) 54 LT 463), and that the testator
intended to dispose only of his own property.
5 Eg where the context shows that the testator erroneously believed that he had such property as described, or where he
had only the intention of acquiring it (Evans v Tripp (1821) 6 Madd 91; Waters v Wood (1852) 5 De G & Sm 717; Millar v
Woodside (1872) IR 6 Eq 546; Re Mulder, Westminster Bank Ltd v Mulder [1943] 2 All ER 150, CA (Eng) (testator entitled
to a share in a business but purporting to dispose of whole), distinguished in Re Lewis's Will Trusts, Lewis v Williams
[1984] 3 All ER 930, [1985] 1 WLR 102), or where the testator described persons whom he merely imagined were in
existence, and who did not exist (Del Mare v Robello (1792) 1 Ves 412; Daubeny v Coghlan (1842) 12 Sim 507).
[330.129]
Falsa demonstratio non nocet
It is a rule of construction, which applies to all written instruments and not to wills alone, that if, of various
terms used to describe a subject matter (whether a person or property), some are sufficient to ascertain
the subject matter with certainty but others add a description which is not true, these other terms are not
allowed to vitiate the gift1. The rule in full is falsa demonstratio non nocet cum de corpore constat2, and
the second part of this maxim is an essential part of it3. The false description must merely be added onto
that which is otherwise clear4, although it need not come at the end of the sentence5. The characteristic
of cases within the rule is that the description so far as it is false, applies to no subject at all, and so far
as it is true applies to one only6.
1 Llewellyn v Earl of Jersey (1843) 11 M & W 183 at 189 per Parke B (deed); Morrell v Fisher (1849) 4 Exch 591 at 604
per Alderson B . See also Goodright d Lamb v Pears (1809) 11 East 58; Anderson v Berkley [1902] 1 Ch 936 at 940.
2 Ie a false description does not vitiate when there is no doubt as to the subject meant. See Travers v Blundell (1877) 6 Ch
D 436 at 442-444, CA (Eng) .
3 Re Brocket, Dawes v Miller [1908] 1 Ch 185 at 194.
4 Thomas d Evans v Thomas (1796) 6 Term Rep 671 at 676 per Lord Kenyon CJ .
5 Cowen v Truefitt Ltd [1899] 2 Ch 309 at 311, CA (Eng) (lease).
6 Morrell v Fisher (1849) 4 Exch 591 at 604; Re Rayer, Rayer v Rayer [1903] 1 Ch 685.
[330.130]
Description wholly false
Where the description is wholly false, so that no known existing person or thing satisfies the description,
but the context of the will and the circumstances of the case show unambiguously whom or what the
testator meant, the description is rejected and the testator's intention is effectuated1.
This rule has been applied to false descriptions of donees in cases where one or more of the legatee's
names was wrongly given2; where a corporation was misdescribed3; where the legatee was described
as 'rector' instead of 'vicar'4, or as 'apothecary' instead of 'dispenser'5; and where the name of the father6
Page 113
or mother7 of the legatees was wrongly given. In a number of cases, a gift to the children of one person
has taken effect in favour of the children of another person where the context and circumstances show
that they were the persons intended8.
The rule has most frequently been applied to false descriptions of property, where no property accurately
answering the description given belonged to the testator at the date of the will9. In such circumstances
'my money on deposit receipt' in a named bank has passed shares in the bank10; 'shares' has passed
debenture stock11; 'sums owing' has passed sums due under documents which were unenforceable for
want of registration12; 'real estate' has passed the proceeds of sale of real estate13; 'war loans' has
passed Exchequer bonds14, conversion stock and Treasury bonds15; 'stocks or shares in the Great
Eastern Railway' was held to pass stock substituted on the amalgamation of that company with other
companies16; and a gift of property described as 'Lithbridge' has passed a property in fact called
'Silkbridge'17. The principle is limited to cases of misdescription of property in the testator's possession at
the date of the will; there is no ground for assuming that he was falsely describing property he did not
then possess and perhaps did not contemplate possessing18.
1 See Re Milner-Gibson-Cullum, Cust v A-G [1924] 1 Ch 456, where a portrait was said to be wrongly described, but there
was no difficulty in identifying the picture intended to pass.
2 Masters v Masters (1718) 1 P Wms 421 at 425 (Mrs Swopper described as 'Mrs Sawyer'); Beaumont v Fell (1723) 2 P
Wms 141 (Gertrude Yardley described as 'Catherine Earnley', there being no such person); Lee v Pain (1844) 4 Hare 201
at 253 (Miss F A J described as 'Miss S J', there being a Mrs S J but it being clear that the gift was for an unmarried lady).
3 A-G v Rye Corp (1817) 7 Taunt 546; Queen's College, Oxford v Sutton (1842) 12 Sim 521.
4 Hopkinson v Ellis (1842) 5 Beav 34.
5 Ellis v Bartrum (No 2) (1857) 25 Beav 109.
6 Douglas v Fellows (1853) Kay 114.
7 Bradwin v Harpur (1759) Amb 374.
8 Bradwin v Harpur (1759) Amb 374; Douglas v Fellows (1853) Kay 114; Re Waller, White v Scoles (1899) 68 LJ Ch 526,
CA (Eng) (where the father was stated to be dead at the date of the will, the person named was still alive and unmarried,
but another, of the same family but with different Christian names, was dead leaving three children). See also Bristow v
Bristow (1842) 5 Beav 289 at 291 (where the donees were the three remaining children of a named uncle, who had no
children, but a cousin of the same name had three children answering the description); Lord Camoys v Blundell (1848) 1
HL Cas 778 (where a gift to the second son of E W was construed as a gift to the second son of J W, E W being his eldest
son).
9 The rule cannot be applied if the testator had property at the date of the will that accurately answered the description: Re
Weeding, Armstrong v Wilkin [1896] 2 Ch 364; Re Lamb, Marston v Chauvet (1933) 49 TLR 541.
10 Re Cranfield, Mosse v Cranfield [1895] 1 IR 80. See also Re Vear, Vear v Vear (1917) 62 Sol Jo 159.
11 Re Weeding, Armstrong v Wilkin [1896] 2 Ch 364.
12 Re Rowe, Pike v Hamlyn [1898] 1 Ch 153, CA (Eng) .
13 Re Glassington, Glassington v Follett [1906] 2 Ch 305.
14 Re Ionides, London County Westminster and Parr's Bank Ltd v Craies [1922] WN 46.
15 Re Price, Trumper v Price [1932] 2 Ch 54; Re Gifford, Gifford v Seaman [1944] Ch 186, [1944] 1 All ER 268.
16 Re Anderson, Public Trustee v Bielby (1928) 44 TLR 295, where stock in the company formed on the amalgamation,
which the testator had purchased before the date of the will but after the amalgamation, did not, however, pass.
17 Re Nicholl, Re Perkins, Nicholl v Perkins (1920) 125 LT 62.
18 Re Gifford, Gifford v Seaman [1944] Ch 186 at 189, [1944] 1 All ER 268 at 269, where a gift of 'war bonds' was held to
pass consolidated stock, but not national savings certificates and defence bonds acquired after the date of the will.
Page 114
[330.131]
Limits of the rule
The rule of falsa demonstratio non nocet1 is limited by a second rule of no less importance, namely that
additional words are not rejected as a false description if they are capable of being read as accurate
words of restriction2. If, therefore, it is doubtful whether the words of the will import a false reference or
description, or whether they are words of restriction that limit the generality of former words, the court
never presumes error or falsehood, and the latter construction is preferred3. Accordingly, where there
exists some subject as to which all the descriptions are true, and some subject as to which part is true
and part false, the words are considered to be words of true restriction, so that they refer to that subject
only as to which all the descriptions are true4.
Additional words have been construed as words of true restriction where they consisted of references to
tenure5, occupation6, locality7, mode of acquisition or title8, or of descriptions of donees9.
In order for the words to be so construed, all the words must be wholly true as to the restricted part, and
there must be no clear intention that the whole should pass10.
1 As to this rule see [330.129].
2 Non accipi debent verba in demonstrationem falsam quae competunt in limitationem veram: Bacon's Maxims reg 13.
3 See Williams on Wills (7th Edn, 1995) vol 1 ch 57; Morrell v Fisher (1849) 4 Exch 591 at 604 per Alderson B . See also
Doe d Ashforth v Bower (1832) 3 B & Ad 453 at 459; Nightingall v Smith (1848) 1 Exch 879 at 886; Re Brocket, Dawes v
Miller [1908] 1 Ch 185 at 190.
4 Ridge v Newton (1842) 2 Dr & War 239; Morrell v Fisher (1849) 4 Exch 591; Slingsby v Grainger (1859) 7 HL Cas 273 at
283-287; Gilliat v Gilliat (1860) 28 Beav 481; Pedley v Dodds Dodds v Pedley, (1866) LR 2 Eq 819; O'Connor v O'Connor
(1870) IR 4 Eq 483; Millar v Woodside (1872) IR 6 Eq 546; Re Bennett, ex p Kirk (1877) 5 Ch D 800, CA (Eng) .
5 Roe d Conolly v Vernon and Vyse (1804) 5 East 51; Doe d Brown v Brown (1809) 11 East 441; Stone v Greening (1843)
13 Sim 390; Hall v Fisher (1844) 1 Coll 47 (but as to the last two cases cited see Re Bright-Smith, Bright-Smith v
Bright-Smith (1886) 31 Ch D 314; Hallett v Hallett (1898) 14 TLR 420, CA (Eng) ); Quennell v Turner (1851) 13 Beav 240;
Mathews v Mathews (1867) LR 4 Eq 278.
6 Higham v Baker (1583) Cro Eliz 15. See also Doe d Parkin v Parkin (1814) 5 Taunt 321; Doe d Renow v Ashley (1847)
10 QB 663; Morrell v Fisher (1849) 4 Exch 591; Doe d Hubbard v Hubbard (1850) 15 QB 227; Whitfield v Langdale (1875)
1 Ch D 61 at 80; Homer v Homer (1878) 8 Ch D 758, CA (Eng) ; Re Seal, Seal v Taylor [1894] 1 Ch 316, CA (Eng) .
7 White v Vitty (1826) 2 Russ 484; Moser v Platt (1844) 14 Sim 95; Attwater v Attwater (1853) 18 Beav 330; Evans v
Angell (1858) 26 Beav 202; Webber v Stanley (1864) 16 CBNS 698; Lambert v Overton (1864) 11 LT 503; Smith v
Ridgway (1866) LR 1 Exch 331, Ex Ch ; Keogh v Keogh (1874) IR 8 Eq 179.
8 Doe d Ryall v Bell (1800) 8 Term Rep 579; Roe d Conolly v Vernon and Vyse (1804) 5 East 51; Wilkinson v Bewicke
(1853) 3 De GM & G 937; Cave v Harris Harris v Cave, (1887) 57 LT 768. Cf Norman v Norman [1919] 1 Ch 297.
9 Wrightson v Calvert (1860) 1 John & H 250.
10 Paul v Paul (1760) 1 Wm Bl 255 at 256; Hardwick v Hardwick (1873) LR 16 Eq 168 at 176-177.
[330.132]
Description partly true as to each of two or more subjects
If the description is not strictly applicable to any person or thing, but is applicable partly to one person or
thing and partly to another, the court has always inquired into the material circumstances of the case for
the purpose of deciding whether the testator intended to make the gift applicable to the one or the other1.
Page 115
1 Bernasconi v Atkinson (1853) 10 Hare 345 at 349. See also Bradshaw v Bradshaw (1836) 2 Y & C Ex 72; Adams v
Jones (1852) 9 Hare 485; Re Hooper, Hooper v Warner (1902) 88 LT 160. For criticisms of this rule see Doe d Hiscocks v
Hiscocks (1839) 5 M & W 363 at 369. As to the names of donees see British Home and Hospital for Incurables v Royal
Hospital for Incurables (1904) 90 LT 601, CA (Eng) . As to the subject matter of the gift see Rowlatt v Easton (1863) 2 New
Rep 262, where the court had to decide between two types of stock, neither of which exactly answered the description.
[330.133]
General description followed by enumeration of particulars
Where some subject matter is given under a description applicable to the whole, and then words of
enumeration are added which do not completely enumerate and exhaust all the particulars which are
included under the previous description, the question is which is the predominant description1. There is
no rule that, of the two descriptions, the first is to prevail. If the subsequent words are meant to substitute
a definite and precise statement for an antecedent generality, they must be read as explanatory and, if
necessary, as restrictive of the prior general description2; otherwise the general description is given its
full effect3.
1 West v Lawday (1865) 11 HL Cas 375 at 384; Hardwick v Hardwick (1873) LR 16 Eq 168; Travers v Blundell (1877) 6 Ch
D 436 at 441-443, CA (Eng) . See also Blake v Blake [1923] 1 IR 88.
2 Re Brocket, Dawes v Miller [1908] 1 Ch 185 at 195 per Joyce J (devise of 'all the real estate' to which the testatrix was
entitled under a will, 'namely' certain parcels omitting one parcel; that parcel did not pass). Cf D'Aglie v Fryer (1841) 12
Sim 1; Glanville v Glanville (1863) 33 Beav 302.
3 Matthews v Maude (1830) 1 Russ & M 397; Reeves v Baker (1854) 18 Beav 372 ('all my property whether freehold or
personal' passed copyholds); Stanley v Stanley (1862) 2 John & H 491; West v Lawday (1865) 11 HL Cas 375 at 384; Re
Roberts, Kiff v Roberts (1886) 55 LT 498, CA (Eng) ('all my property, leasehold and freehold' passed personally); Roberts
v Thorp (1911) 56 Sol Jo 13 ('all my property', followed by a list of specific chattels, passed realty); Stapleton v D'Alton
(1914) 49 ILT 62 (gift of remainder of estate consisting of certain described property); Norman v Norman [1919] 1 Ch 297;
Moore v Phelan [1920] 1 IR 232 ('the seven houses I hold in' S Terrace passed the eight houses there to which the
testatrix was entitled).
[330.134]
Inaccuracy in number of donees
Where there is a gift to a number of persons designated by a class or group description, with a statement
of the number of the donees which is either greater or less1 than the actual number of persons who fit
the description at the death of the testator (as in the case of a gift to the four children of a named person,
who at the death of the testator is shown to have five children), then, unless it appears that all the
persons so designated were intended to take independently of their number2, the court considers with
how many of such persons the testator was acquainted at the date of his will, and, if the number
corresponds with the number in the will, may thus be able to identify the particular persons described3.
For this purpose, direct evidence of the testator's intention is inadmissible4.
There are however, cases, where the court may arrive at the conclusion that all the persons satisfying a
particular description are intended to be benefited, and, if there has been an inaccurate statement of the
number of the persons composing the class, the court rejects the number5. Thus, if it appears that at the
date of the will the fact was, and the testator knew, that the number of persons who then answered the
description was greater or less than the number shown by the will6, or if the number could not then, in
fact and to the testator's knowledge, be ascertained7, or if (where the gift would otherwise be void for
uncertainty) there is no evidence at all of the testator's knowledge or other admissible evidence to enable
the court to determine who was meant by the description8, the court may reject the number as a mistake.
Page 116
1 Re Sharp, Maddison v Gill [1908] 2 Ch 190, CA (Eng) .
2 Mathews v Foulshaw (1864) 12 WR 1141.
3 Sherer v Bishop (1792) 4 Bro CC 55; Lord Selsey v Lord Lake (1839) 1 Beav 146 at 151 ('her five daughters'; there were
five sons and one daughter, who alone took); Lane v Green (1851) 4 De G & Sm 239 (to the four sons of A; she had three
sons and one daughter, who all took); Newman v Piercey (1876) 4 Ch D 41; Re Mayo, Chester v Keirl [1901] 1 Ch 404 at
407. Another child, en ventre sa m re, and not known to the testator, may then be excluded: Re Emery's Estate, Jones v
Emery (1876) 3 Ch D 300; Re Smiley (1908) 28 NZLR 1; Re McNeil, Wright v Johnstone (1909) 9 SRNSW 220. For cases
where the enumeration corrected a mistake in the names see Garth v Meyrick (1779) 1 Bro CC 30; Humphreys v
Humphreys (1789) 2 Cox Eq Cas 184.
4 Re Mayo, Chester v Keirl [1901] 1 Ch 404.
5 Re Stephenson, Donaldson v Bamber [1897] 1 Ch 75 at 81, CA (Eng), per Lord Russell of Killowen CJ and at 85 per
Lindley LJ ; Re Sharp, Maddison v Gill [1908] 2 Ch 190 at 194, CA (Eng) . See also Harrison v Harrison (1829) 1 Russ & M
71 at 72; Hare v Cartridge (1842) 13 Sim 165; Lee v Pain (1844) 4 Hare 201 at 249 (the last two cases cited were
commented on in Re Stephenson, Donaldson v Bamber (above)); Yeats v Yeats (1852) 16 Beav 170 at 171; Mathews v
Foulshaw (1864) 12 WR 1141; Re Dutton, Plunkett v Simeon [1893] WN 65; Re Groom, Booty v Groom [1897] 2 Ch 407;
and see Lord Selsey v Lord Lake (1839) 1 Beav 146. The rule does not apply where the persons are described by name:
see Re Whiston, Whiston v Woolley [1924] 1 Ch 122, CA (Eng) .
6 Hampshire v Peirce (1751) 2 Ves Sen 216; Scott v Fenoulhett (1784) 1 Cox Eq Cas 79; Daniell v Daniell (1849) 3 De G
& Sm 337; Lee v Lee (1864) 10 Jur NS 1041; Spencer v Ward (1870) LR 9 Eq 507.
7 Sleech v Thorington (1754) 2 Ves Sen 560 ('to the two servants living with me at my death').
8 Tomkins v Tomkins (1743) 19 Ves 126n; Stebbing v Walkey (1786) 2 Bro CC 85 at 86 (where, however, Kenyon MR
said 'I yield to the authority of the cases and not to the reason of them'); Garvey v Hibbert (1812) 19 Ves 125 (a leading
case on this mode of construction); Lee v Pain (1844) 4 Hare 201 at 249; Morrison v Martin (1846) 5 Hare 507; Wrightson
v Calvert (1860) 1 John & H 250 at 251 per Page Wood V-C (explained in Newman v Piercey (1876) 4 Ch D 41 at 47 per
Jessel MR ); Re Bassett's Estate, Perkins v Fladgate (1872) LR 14 Eq 54; McKechnie v Vaughan (1873) LR 15 Eq 289;
Re Sharp, Maddison v Gill [1908] 2 Ch 190, CA (Eng) .
[330.135]
Designation by name or description
A donee has been often sufficiently designated by a nickname or erroneous name proved to have been
used by the testator, or by a name gained by reputation and known to the testator1, and property may be
sufficiently described by the description the testator was accustomed to use2.
1 See Williams on Wills (7th Edn, 1995) vol 1 ch 59. See Gynes v Kemsley (1677) 1 Freem KB 293 ('Margery' described
as 'Margaret'); Baylis v A-G (1741) 2 Atk 239; Edge v Salisbury (1749) Amb 70 at 71; Goodinge v Goodinge (1749) 1 Ves
Sen 231; Dowset v Sweet (1753) Amb 175 ('James' described as 'John'); Parsons v Parsons (1791) 1 Ves 266; Lee v Pain
(1844) 4 Hare 201 at 251-252; Andrews v Andrews (1885) 15 LR Ir 199, CA (Ir) .
2 Cf Doe d Beach v Earl of Jersey (1825) 3 B & C 870 ('my Briton Ferry estate'; estate not situated in Briton Ferry).
[330.136]
Designation by both name and description
Where a donee is designated by name and description, then if there is a person who has that name and
the description is incorrect for him and all others, the description is ignored, for it is a rule that a name will
prevail against an error of description1 unless the false description is due to the fraud of the alleged
donee2. The name alone, however, will not prevail unless it appears that the description is mistaken. For
Page 117
the rule to apply, it is necessary first to show that there is an error in the description3. Similarly, where a
description is correct and sufficient, an incorrect name may be ignored4.
Where, however, either the name alone or the description alone is sufficient to identify a subject, and
they do not identify the same subject, then, according to the circumstances of the case, the description
and not the name5, or the name and not the description6, may prevail. The name in fact is only a mode
of description7, and the question is to determine which portion of the whole description is to prevail8. For
this purpose, evidence is admissible of all the facts known to the testator at the date of the will, and in
certain circumstances direct evidence of his intention may be received9. On the evidence properly
admissible, a test often applied is to inquire whether the testator was more likely to err in the name or in
the description10. Thus, if there is a person for whom the name is accurate, but the testator was not
intimate with him, and there is also a person for whom the name is inaccurate but the description is
sufficient to identify him, and the testator was intimate with him, the latter is the person entitled11.
If the question cannot be answered, the gift is void for uncertainty12.
1 See Williams on Wills (7th Edn, 1995) vol 1 ch 59. See Giles v Giles Penfold v Penfold, (1836) 1 Keen 685; Doe d
Gains v Rouse (1848) 5 CB 422; Ford v Batley (1852) 17 Beav 303; Ormiston's Executors v Laws 1966 SLT 110, where a
gift 'to my fianc e S M', who in fact had never been a fianc e, took effect.
2 Giles v Giles Penfold v Penfold, (1836) 1 Keen 685. See also Kennell v Abbott (1799) 4 Ves 802; Wilkinson v Joughin
(1866) LR 2 Eq 319; Re Posner, Posner v Miller [1953] P 277, [1953] 1 All ER 1123.
3 See Drake v Drake (1860) 8 HL Cas 172 at 179 per Lord Campbell LC , adopted in Charter v Charter (1874) LR 7 HL
364 at 380-381 per Lord Cairns LC . As to the difficulties in applying this rule see Lord Camoys v Blundell (1848) 1 HL Cas
778; Garland v Beverley (1878) 9 Ch D 213 at 218-219. The court does not conjecture that an error existed: Mostyn v
Mostyn (1854) 5 HL Cas 155.
4 Pitcairne v Brase (1679) Cas temp Finch 403; Dowset v Sweet (1753) Amb 175; Stockdale v Bushby (1815) Coop G
229.
5 Garth v Meyrick (1779) 1 Bro CC 30; Smith v Coney (1801) 6 Ves 42; Doe d Le Chevalier v Huthwaite (1820) 3 B & Ald
632; Bradshaw v Bradshaw (1836) 2 Y & C Ex 72; Lord Camoys v Blundell (1848) 1 HL Cas 778; Adams v Jones (1852) 9
Hare 485; Re Blackman (1852) 16 Beav 377; Re Feltham's Will Trusts (1855) 1 K & J 528; Hodgson v Clarke (1860) 1 De
GF & J 394 at 397; Re Nunn's Trusts (1875) LR 19 Eq 331; Re Hooper, Hooper v Warner (1902) 88 LT 160.
6 Newbolt v Pryce (1844) 14 Sim 354; Garner v Garner (1860) 29 Beav 114; Gillett v Gane (1870) LR 10 Eq 29; Farrer v
St Catharine's College, Cambridge (1873) LR 16 Eq 19; Garland v Beverley (1878) 9 Ch D 213; Re Taylor, Cloak v
Hammond (1886) 34 Ch D 255, CA (Eng) .
7 A description of legatees as those 'named' in the will, although primarily referring to those mentioned by name, may
denote persons merely specified or mentioned by another description: Bromley v Wright (1849) 7 Hare 334; Re Holmes'
Trusts (1853) 1 Drew 321; Seale-Hayne v Jodrell [1891] AC 304 at 306-309, HL .
8 Bernasconi v Atkinson (1853) 10 Hare 345 at 351.
9 Direct evidence of the intention of a testator such as the instructions for his will, is not admissible unless both the name
and description are equally, although not necessarily completely, applicable to two persons: Lord Camoys v Blundell
(1848) 1 HL Cas 778; Bernasconi v Atkinson (1853) 10 Hare 345; Drake v Drake (1860) 8 HL Cas 172; Charter v Charter
(1874) LR 7 HL 364 at 377, as explained in Re Ray, Cant v Johnstone [1916] 1 Ch 461.
10 Bernasconi v Atkinson (1853) 10 Hare 345 at 351-352, approved in Re Fry, Mathews v Freeman (1874) 22 WR 813,
CA (Eng) ; Re Lord Blayney's Trusts (1875) IR 9 Eq 413; Re Lyon's Trusts (1879) 48 LJ Ch 245.
11 Charter v Charter (1874) LR 7 HL 364; Re Brake (1881) 6 PD 217; Re Chappell [1894] P 98; Re Blake's Trusts [1904] 1
IR 98.
12 Drake v Drake (1860) 8 HL Cas 172.
[330.137]
Application of the rule

Page 118
The rule1 has been applied both to descriptions of donees2 and of property3, and the court has rejected
reference to particular parishes, streets or other localities4, to occupation5, to a mode of acquisition6 and
to acreage7.
1 Ie the rule that in a case of designation both by name and description, one part of the designation may prevail over the
other: see [330.136].
2 Ryall v Hannam (1847) 10 Beav 536 (to 'E A, a natural daughter of' a named person, where the name and sex of the
child were incorrect); Re Rickit's Trusts (1853) 11 Hare 299 (to a niece of a named person, where the only child was a
nephew); Ford v Batley (1852) 17 Beav 303 (to a man living with a woman wrongly named, where evidence of surrounding
circumstances was sufficient to identify the donee); Stringer v Gardiner (1859) 4 De G & J 468 ('to my niece E S'; a
grandniece E J S was held entitled). See also Doe d Gains v Rouse (1848) 5 CB 422 ('my wife C', where the testator had a
wife M but was living with C with whom he had contracted an invalid marriage); Re Ingle's Trusts (1871) LR 11 Eq 578 ('my
late nephew M'; a nephew M who was still living was preferred to the testator's deceased brother of the same name);
Thomson v Eastwood (1877) 2 App Cas 215 (where the legatee was described as 'the son of' a named person, the
question whether he was born in lawful wedlock was immaterial); Re Marquess of Bute, Marquess of Bute v Ryder (1884)
27 Ch D 196 (gift to person entitled under a deed of entail, there being no such deed); Anderson v Berkley [1902] 1 Ch 936
('to A's wife L', where there was no marriage, although the testator was told that there had been one); Re Hooper, Hooper
v Warner (1902) 88 LT 160 (to 'P H, son of C A H'; B H, one of three sons, held entitled).
3 Day v Trig (1715) 1 P Wms 286 (a devise of all freehold houses in a named locality where the testator had only
leasehold houses); Door v Geary (1749) 1 Ves Sen 255 (stock wrongly named but correct in amount); Drake v Martin
(1856) 23 Beav 89 (bank stock passed government stock otherwise sufficiently identified); Ellis v Eden (No 2) (1858) 25
Beav 482 (stock 'in my name' passed stock purchased but not transferred to testator); Rowlatt v Easton (1863) 2 New Rep
262 (name and amount of stock incorrect); Burbey v Burbey (1867) 15 LT 501; Coltman v Gregory (1870) 40 LJ Ch 352
(stock stated to be in joint names but actually in testator's name alone); Norman v Norman [1919] 1 Ch 297 (devise of land
correctly described but wrongly stated to be purchased wholly from a named person). In Mackinley v Sison (1837) 8 Sim
561, Power v Lencham (1838) 2 Jo Ex Ir 728, and Quennell v Turner (1851) 13 Beav 240, stock 'standing in my name'
passed stock standing in the name of trustees. See also Williams v Williams (1786) 2 Bro CC 87; Maybery v Brooking
(1855) 7 De GM & G 673; Wilson v Morley (1877) 5 Ch D 776; Re Hodgson, Darley v Hodgson [1899] 1 Ch 666.
4 Owens v Bean (1678) Cas temp Finch 395 (parish right, county wrong); Doe d Beach v Earl of Jersey (1818) 1 B & Ald
550 (on appeal (1825) 3 B & C 870); Newton v Lucas (1836) 1 My & Cr 391; Gauntlett v Carter (1853) 17 Beav 586;
Armstrong v Buckland (1854) 18 Beav 204; Tann v Tann (1863) 2 New Rep 412; Harman v Gurner (1866) 35 Beav 478,
where, however, there was evidence of habitual misdescription by the testator; Homer v Homer (1878) 8 Ch D 758, CA
(Eng) ; Re Mayell, Foley v Wood [1913] 2 Ch 488.
5 Blague v Gold (1637) Cro Car 447-473; Goodtitle d Paul v Paul (1760) 2 Burr 1089; Marshall v Hopkins (1812) 15 East
309 (where the words were transposed); Goodtitle d Radford v Southern (1813) 1 M & S 299; Nightingall v Smith (1848) 1
Exch 879; Doe d Campton v Carpenter (1850) 15 Jur 719; White v Birch (1867) 36 LJ Ch 174; Hardwick v Hardwick (1873)
LR 16 Eq 168.
6 Hill v St John (1775) 3 Bro Parl Cas 375; Welby v Welby (1813) 2 Ves & B 187 at 191; Harrison v Hyde (1859) H & N
805; Sealy v Stawell (1868) IR 2 Eq 326 at 348; Cooch v Walden (1877) 46 LJ Ch 639. See also Girdlestone v Creed
(1853) 10 Hare 480 at 487.
7 Whitfield v Langdale (1875) 1 Ch D 61 at 76-77.
[330.138]
Change of circumstances between will and death
Although descriptions in a will must be construed according to the usual rules as to the circumstances to
be taken into account1, where a person or body who once satisfied the description no longer existed at
the date of the will, another person or body existing at the date of the will, and satisfying the description
inaccurately but sufficiently, may be entitled under the gift2.
An accurate description of a donee by name is not as a rule affected, in the case of a person, by a
change of name before the testator's death, or, in the case of a society, corporation or body, by a change
of name or by reorganisation if the donee substantially exists in the same nature as at the date of the
will3. By the terms of the will, however, the use or adoption of a specified name4 at the testator's death5,
or at the time of payment or vesting6, or at some other time7, may be a condition of the gift taking effect
Page 119
at all.
1 As to property see [330.141] and following, and as to donees see [330.153] and following.
2 Dowset v Sweet (1753) Amb 175 note (2); Dooley v Mahon (1877) IR 11 Eq 299; and see the cases cited in [330.086]
note 1.
3 Re Joy, Purday v Johnson (1888) 60 LT 175 (amalgamation of two societies); Re Wedgwood, Sweet v Cotton [1914] 2
Ch 245 (charitable work carried on at same home, although transferred from one association to another); Re Donald,
Moore v Somerset [1909] 2 Ch 410 (gift for benefit of volunteer and militia units substantially existing as the Territorial
Army). Cf Re Andrews, Dunedin Corp v Smyth (1910) 29 NZLR 43 (effect of introduction of compulsory service); and see
Re Quibell's Will Trusts, White v Reichert [1956] 3 All ER 679, [1957] 1 WLR 186 (bequest of shares in company to be
formed passed shares although company was formed before death).
4 The word 'name' may be used in a figurative sense, as meaning 'stock': Pyot v Pyot (1749) 1 Ves Sen 335 (where a
change of name by marriage did not exclude); Doe d Wright v Plumptre (1820) 3 B & Ald 474 at 482; Carpenter v Bott
(1847) 15 Sim 606; Re Maher, Maher v Toppin [1909] 1 IR 70, CA (Ir) .
5 Bon v Smith (1596) Cro Eliz 532 (woman, who had changed name by marriage before testator's death; not entitled);
Jobson's Case (1597) Cro Eliz 576 (marriage after testator's death; entitled).
6 Doe d Wright v Plumptre (1820) 3 B & Ald 474 at 482.
7 Eg at birth, so that the name is the family name: Barlow v Bateman (1735) 2 Bro Parl Cas 272; Leigh v Leigh (1808) 15
Ves 92.
[330.139]
Accuracy of generic description of property
A gift which accurately describes property of a generic nature (that is, property susceptible of increase or
diminution between the date of the will and death1) belonging to the testator at the date of the will does
not fail where the description is sufficiently apt to indicate particular property belonging to the testator at
his death, even though as a description of that property it is inaccurate, and that particular property
accordingly passes under the gift2, the inaccuracy being then of no importance. Where, out of several
properties alleged to satisfy the description at the death, only one accurately satisfies it3, then only that
property passes under the gift4. Where no property at all is sufficiently described by the words of the will
at the testator's death, the gift fails5. However, where the testator had neither at the date of the will nor at
his death property accurately described by the words of the will, the court may from the circumstances
be able to infer what was meant to be described, and the gift does not necessarily fail6. In the case of
bequests of personal property, the gift may take effect as a general legacy7.
1 See [330.141].
2 Cooch v Walden (1877) 46 LJ Ch 639; Saxton v Saxton (1879) 13 Ch D 359 (devise of leasehold house held to carry
freehold acquired after the date of the will). Cf Re Willis, Spencer v Willis [1911] 2 Ch 563 (plots purchased subsequently
to devise of house 'in which I now reside' held to pass); Re Reeves, Reeves v Pawson [1928] Ch 351 (where 'my present
lease' was held to refer, by virtue of a codicil confirming the will, to a renewed lease, the renewal being before the date of
the codicil); Re Fleming's Will Trusts, Ennion v Hampstead Old People's Housing Trust Ltd [1974] 3 All ER 323, [1974] 1
WLR 1552 (devise of leasehold house held to carry freehold acquired after date of will notwithstanding absence of
merger). See also Higgins v Dawson [1902] AC 1, HL .
3 As to the rule of construction in such a case see [330.131].
4 Emuss v Smith (1848) 2 De G & Sm 722; Re Portal and Lamb (1885) 30 Ch D 50, CA (Eng) ; Cave v Harris Harris v
Cave, (1887) 57 LT 768; Re Potter, Stevens v Potter (1900) 83 LT 405. See also Webb v Byng (1855) 1 K & J 580 at 594
(after-acquired property held not to pass under the name testatrix was wont to use as to other property).
5 Barber v Wood (1877) 4 Ch D 885; Re Knight, Knight v Burgess (1887) 34 Ch D 518.
6 Re Jameson, King v Winn [1908] 2 Ch 111 at 116. See also King v Wright (1845) 14 Sim 400; Flood v Flood [1902] 1 IR
Page 120
538.
7 Selwood v Mildmay (1797) 3 Ves 306; Lindgren v Lindgren (1846) 9 Beav 358 (as to these cases see [330.083] note 3);
Findlater v Lowe [1904] 1 IR 519.
[330.140]
Accuracy of specific description
Where specific property existing at the date of the will is described, the whole of that property may pass
under the gift notwithstanding that at the date of the death the description applies accurately to part only
of that property1.
1 Re Evans, Evans v Powell [1909] 1 Ch 784. Cf Re Willis, Spencer v Willis [1911] 2 Ch 563.
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Administration and Succession/(1) Wills/(4) Construction of Particular Dispositions/ A. Property Passing/ (i) In
General
(4) CONSTRUCTION OF PARTICULAR DISPOSITIONS

A. PROPERTY PASSING
(i) In General
[330.141]
Will speaks from death
Unless a contrary intention appears in it1, a will2 must be construed, with reference to the property
comprised in it3, to speak and take effect as if it had been executed immediately before the testator's
death4 and as if the condition of things to which it refers in this respect is that existing immediately before
his death5. This provision does not, however, preclude the investigation of circumstances at the date of
the will in order to ascertain whether a gift has been adeemed6.
Where the thing given is generic7, so that the description may from time to time apply to different
amounts of property of like nature or to different objects, the effect of the rule, if applicable, is that the
property answering the description at the testator's death passes under the gift8.
No contrary intention is shown by the mere use of a possessive adjective9 in the case of such a generic
gift10, or by a description of the property as being that of which the testator is seized or possessed11. A
description of the property as that which the testator 'now' owns or occupies may according to the
circumstances12, but it appears prima facie does not, show a contrary intention so as to exclude
after-acquired property of the generic nature13.
These provisions14 do not, however, affect a description of some specific thing existing at the date of the
will15. The ademption of specific gifts has already been discussed16.
1 See the text and notes 11-15 below.
3 For the meaning of 'property' see [330.001] note 2. As to bequests of 'personal estate' see [330.143]. For the purposes of
conflict of laws, the distinction is not between personalty and realty as in the case of wills, but between immovables and
movables: see Re Grassi, Stubberfield v Grassi [1905] 1 Ch 584 at 590-591; Re Lyne's Settlement Trusts, Re Gibbs, Lyne
v Gibbs [1919] 1 Ch 80, CA (Eng) ; Re Cartwright, Cartwright v Smith [1939] Ch 90, [1948] 4 All ER 209, CA (Eng) .
4 Wills Act 1959 (Act 346) s 18 (which is equivalent to the English Wills Act 1837 s 24).
5 Higgins v Dawson [1902] AC 1 at 7, HL .
6 See Re Edwards, Macadam v Wright [1958] Ch 168 at 176, [1957] 2 All ER 495 at 501, CA (Eng), per Jenkins LJ . As to
ademption see [330.061].
7 Ie it may increase, diminish, or otherwise change during the testator's life: Goodlad v Burnett (1855) 1 K & J 341 at 349;
Re Slater, Slater v Slater [1906] 2 Ch 480 at 485; Re Gillins, lnglis v Gillins [1909] 1 Ch 345. The English Wills Act 1837 s
24 (which corresponds with the Wills Act 1959 s 18), does not merely apply to a residuary gift; it also applies to specific
gifts: Lady Langdale v Briggs (1856) 8 De GM & G 391 at 436-437; Re Ord, Dickinson v Dickinson (1879) 12 Ch D 22 at
25, CA (Eng) .
8 Eg where the testator acquired further property of the same kind (Lady Langdale v Briggs (1856) 8 De GM & G 391
(where 'all my freehold lands' and 'all my leasehold lands' included those held at death); Trinder v Trinder (1866) LR 1 Eq
Page 122
695 (where 'my shares in the Great Western Railway' included stock purchased subsequent to the will); Lysaght v
Edwards (1876) 2 Ch D 499 at 505 (general gift of real estate); Everett v Everett (1877) 7 Ch D 428, CA (Eng) (where
debts released by the will were held to include those contracted after it was made); Re Russell, Russell v Chell (1882) 19
Ch D 432 (where a bequest of the testator's share in a partnership passed the whole business, the testator having bought
out his partners before death); or where he acquired a further or different interest, but the property still satisfies the
description (Saxton v Saxton (1879) 13 Ch D 359 ('my term and interest in the leasehold dwelling-house' specified;
purchase of reversion to leasehold); Re Quibell's Will Trusts, White v Reichert [1956] 3 All ER 679, [1957] 1 WLR 186
(bequest of shares in company to be formed; bequest carried shares although company was formed before death)). In Re
Gillins, Inglis v Gillins [1909] 1 Ch 345, a gift of '25 shares' passed only shares as subdivided after the date of the will; this
case was explained, however, as a case of a general legacy in Re Clifford, Mallam v McFie [1912] 1 Ch 29 at 31. See also
Re M'Afee, Mack v Quirey [1909] 1 IR 124. In Re Davies, Scourfield v Davies [1925] Ch 642, a gift of the 'proceeds of such
parts as have been sold' was held to refer to the parts sold at the testator's death. A gift of the testator's land in a certain
locality thus prima facie passes all the land he has in that locality at the time of his death: Doe d York v Walker (1844) 12
M & W 591 ('all lands which I am seised of in the parish or lordship of Great Bowden'); Re Ord, Dickinson v Dickinson
(1879) 12 Ch D 22 at 25, CA (Eng) ('my leasehold houses situate at C'); Re Bridger, Brompton Hospital for Consumption v
Lewis [1894] 1 Ch 297 at 302, CA (Eng), per Davey LJ . The additional property may pass notwithstanding that it has been
specifically devised by a codicil, if the specific devise fails: Re Davies, Thomas v Thomas-Davies [1928] Ch 24.
9 Goodlad v Burnett (1855) 1 K & J 341; Ferguson v Ferguson (1872) IR 6 Eq 199 ('my stock in trade and debts accruing
therefrom'); Re Ord, Dickinson v Dickinson (1879) 12 Ch D 22, CA (Eng) ; Re Russell, Russell v Chell (1882) 19 Ch D 432;
Re Bancroft, Bancroft v Bancroft [1928] Ch 577.
10 It is otherwise where the gift is not generic and the possessive pronoun then shows a contrary intention: Re Sikes,
Moxon v Crossley [1927] 1 Ch 364 ('my piano'). Such a possessive adjective may be an indication that the gift is not
generic: see Goodlad v Burnett (1855) 1 K & J 341 at 348-349 and note 16 below.
11 Doe d York v Walker (1844) 12 M & W 591; Re Horton, Lloyd v Hatchett [1920] 2 Ch 1 (copyholds 'now held by me');
Re Davies, Scourfield v Davies [1925] Ch 642; Re Fleming's Will Trusts, Ennion v Hampstead Old People's Housing Trust
Ltd [1974] 3 All ER 323, [1974] 1 WLR 1552 (where a devise of 'my leasehold house' was held to carry a freehold interest
acquired after the date of the will). Cf Re Fowler, Fowler v Wittingham (1915) 139 LT Jo 183 (where a devise of 'my house
and land known as [R] wherein I now reside' was held to include adjoining fields bought at the same time as the house and
let to tenants, but not adjoining land bought after the date of the will).
12 Cole v Scott (1849) 1 Mac & G 518, where, however, the testator distinguished certain property which should be vested
in him at his death. See also A-G v Bury (1701) 1 Eq Cas Abr 201; Hutchinson v Barrow (1861) 6 H & N 583; Williams v
Owen (1863) 2 New Rep 585; Re Edwards, Rowland v Edwards (1890) 63 LT 481. As to Cole v Scott (1849) 1 Mac & G
518 see Re Farrer's Estate (1858) 8 ICLR 370 at 377-378, and the cases cited in note 13 below.
13 Wagstaff v Wagstaff (1869) LR 8 Eq 229 ('which I now possess'). See also Hepburn v Skirving (1858) 4 Jur NS 651,
where it was held that 'now' must be understood to refer to the death; Re Midland Rly Co (1865) 34 Beav 525; Re
Ashburnham, Gaby v Ashburnham (1912) 107 LT 601 ('all my effects at present at A'; no contrary intention). Cf Lady
Langdale v Briggs (1856) 8 De GM & G 391 at 437 per Turner LJ ; and Re Ord, Dickinson v Dickinson (1879) 12 Ch D 22,
CA (Eng) ('subject to the annuity now charged thereon'; no contrary intention). In Re Champion, Dudley v Champion
[1893] 1 Ch 101 at 107-108, CA (Eng), per North J , the words 'and now in my own occupation', and in Re Willis, Spencer
v Willis [1911] 2 Ch 563 at 568, the words 'and in which I now reside', were treated as a mere additional description of the
property, and not a vital or essential part of the description cutting down the earlier words, which were read as applied to
the circumstances existing at the testator's death, and, therefore, the words quoted were rejected. Similarly, in Re Horton,
Lloyd v Hatchett [1920] 2 Ch 1, the words 'now held by me' were treated as mere additional description, not cutting down
the earlier part of the devise. As to whether there is any principle on which the court may reject such words cf Magee v
Lavell (1874) LR 9 CP 107 at 113. See also [330.129] and following.
14 Ie the Wills Act 1959 s 18.
15 Emuss v Smith (1848) 2 De G & Sm 722 at 733-736, where 'all that my freehold estate purchased of B' did not
comprise a parcel of leasehold mixed with it, even though the testator subsequently bought the reversion; cf Re Fleming's
Will Trusts, Ennion v Hampstead Old People's Housing Trust Ltd [1974] 3 All ER 323, [1974] 1 WLR 1552, cited in note
11); Douglas v Douglas (1854) Kay 400 (money 'which has been charged' on certain land); Re Gibson, Mathews v
Foulsham (1866) LR 2 Eq 669 at 672 ('my 1,000 NBR shares'); Re Portal and Lamb (1885) 30 Ch D 50, CA (Eng) ('my
cottage and land'); Cave v Harris Harris v Cave, (1887) 57 LT 768 at 770; Re Evans, Evans v Powell [1909] 1 Ch 784
('house and effects known as C Villa'); Re Alexander, Bathurst v Greenwood [1910] WN 94, CA (Eng) .
16 See [330.061].
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Administration and Succession/(1) Wills/(4) Construction of Particular Dispositions/ A. Property Passing/ (ii)
Effect of Particular Words
(ii) Effect of Particular Words
[330.142]
'Business'
A bequest of a testator's 'business' or of his share in a business1 prima facie includes his interest in all
the assets, including such interest in the land on which it is carried on as forms part of those assets2; but
in the context or circumstances it may comprise or exclude various items, such as book debts3, bank
balances4, the stock in trade5 or the land on which it is carried on6, or may be extended to property not
part of the assets7. A direction to trustees to carry on a business entitles them to carry on business in the
premises which the testator was accustomed to use, and a bequest of a business in a suitable context
may include the premises where it was carried on8. A bequest of goodwill together with specified
corporeal assets does not, however, in the absence of a strong indication to the contrary, include
freehold premises in which the business is carried on, and a bequest of debts due in respect of the
business prima facie carries only debts due from trade debtors, and does not include a credit balance in
the account of the business at a bank9. 'Business' may include a profession10.
It is a question of construction of the words of the will whether a bequest of a business subjects the
legatee to the obligation to discharge the trade liabilities out of the assets11, or is free of such an
obligation so that the trade liabilities are borne by the testator's residuary estate12.
1 See Re Barfield, Goodman v Child (1901) 84 LT 28, where, in the circumstances, undrawn profits were included; Re
Lawes-Wittewronge, Maurice v Bennett [1915] 1 Ch 408 ('one-fifth share of net profits'; one-fifth of shares included but not
one-fifth of debentures also held by testator).
2 Re Rhagg, Easten v Boyd [1938] Ch 828, [1938] 3 All ER 314. See also Rogers v Rogers (1910) 11 SRNSW 38; Re
White, McCann v Hull [1958] Ch 762, [1958] 1 All ER 379; Mandeville v Duncan 1965 SLT 246.
3 Stuart v Marquis of Bute (1806) 11 Ves 657 (on appeal (1813) 1 Dow 73, HL ); Delany v Delany (1885) 15 LR Ir 55
(explained in Re Barfield, Goodman v Child (1901) 84 LT 28). See also Re Beard, Simpson v Beard (1888) 57 LJ Ch 887;
Re Deller's Estate, Warman v Greenwood [1888] WN 62; Re Stevens, Stevens v Keily [1888] WN 110 at 116; Re Hawkins,
Hawkins v Argent (1913) 109 LT 969.
4 Re Haigh, Haigh v Haigh (1907) 51 Sol Jo 343 (not included); Re Hawkins, Hawkins v Argent (1913) 109 LT 969
(included); Re Beecham, Woolley v Beecham (1919) 63 Sol Jo 430 (included).
5 Blake v Shaw (1860) John 732 (gift of 'plant and goodwill'; stock in trade excluded); Delany v Delany (1885) 15 LR Ir 55
(stock in trade excluded).
6 Blake v Shaw (1860) John 732 (interest in land of no value apart from business); Re Henton, Henton v Henton (1882) 30
WR 702 (freehold shop excluded); Re Hawkins, Hawkins v Argent (1913) 109 LT 969 (house included).
7 Bevan v A-G (1863) 4 Giff 361 (debt of partner included); Re Barfield, Goodman v Child (1901) 84 LT 28 (share of
capital and undrawn profits included); Re England, England v Bayles [1906] VLR 94 ('goodwill' meant provision in articles
for testator's family).
8 Hall v Fennell (1875) IR 9 Eq 615 at 618; Devitt v Kearney (1883) 13 LR Ir 45, CA (Ir) . See also Re Martin, Martin v
Martin [1892] WN 120 ('rents and profits' of business). A trustee or personal representative must account for a new lease
which he acquires for the purposes of a business bequeathed by the will: Re Jarvis, Edge v Jarvis [1958] 2 All ER 336,
[1958] 1 WLR 815.
9 Re Betts, Burrell v Betts [1949] 1 All ER 568.
10 Re Williams' Will Trusts, Chartered Bank of India, Australia and China v Williams [1953] Ch 138, [1953] 1 All ER 536
Page 124
(medical practice).
11 Re White, McCann v Hull [1958] Ch 762 at 773, [1958] 1 All ER 379 at 385 per Wynn-Parry J , who, applying dicta in
Re Rhagg, Easten v Boyd [1938] Ch 828 at 836, [1938] 3 All ER 314 at 319, held the case was one where the business
should be regarded as an entity and the substance of the bequest as the assets of the business subject to its liabilities.
12 See Re Timberlake, Archer v Timberlake (1919) 63 Sol Jo 286; and see the declaration made by Farwell J in Re
Harland-Peck, Hercy v Mayglothing as cited in [1941] Ch 182 at 183, [1940] 4 All ER 347 at 352, CA (Eng) . Where a
testator's share in real estate forming part of the assets of a partnership is devised by him separately from the rest of his
interest in the partnership property, the devisee prima facie takes the share free from liability for the partnership debts as
between the beneficiaries, if the other partnership property is sufficient to meet the debts: Re Holland, Bretell v Holland
[1907] 2 Ch 88, distinguishing Farquhar v Hadden (1871) 7 Ch App 1, where the partnership was insolvent.
[330.143]
'Effects', 'personal estate', 'goods' etc
A gift of the testator's 'effects'1, without a context sufficient to control it, may include the whole of the
testator's personal estate where that property is not otherwise disposed of by the will2, and is prima facie
confined to personal estate3 unless an inference to the contrary arises from the context, in which case
even real estate may be comprised in the term4. The term may also by the context5 be restricted to
particular kinds of personal estate6. Thus, in a gift of a house with its furniture and a class of articles
which tend to the beneficial occupation and enjoyment of the house, ending with 'all other effects', the
term may, by the ejusdem generis rule7, be restricted to other articles of that nature8; and 'effects' is
frequently used in a restricted sense, meaning goods and movables9, a sense especially applicable
where other parts of the personal estate are separately disposed of10, or where there is a subsequent
residuary gift of personal estate11.
'Personal effects' generally means physical chattels having some personal connection with the testator,
such as articles of personal or domestic use or ornament, clothing and furniture, and so forth, but not
money or securities for money12. The expressions 'personal estate', 'personal estate and effects' and
'personal property' are prima facie confined to personal estate in the legal sense13, but may, in the
context or circumstances, include realty14.
A gift of 'goods' or 'goods and chattels' is prima facie sufficient to include the whole personal estate15,
but may be restricted under the ejusdem generis rule or otherwise16. 'Belongings' is capable of carrying
the whole of the testator's residuary personalty, but is not an apt expression in relation to realty17, and it
may by its context have a more restricted meaning18.
1 For the meaning of 'household effects' see [330.150] note 12.
2 Hodgson v Jex (1876) 2 Ch D 122. See also Campbell v Prescott (1808) 15 Ves 500 at 507; Michell v Michell (1820) 5
Madd 69 at 71; Parker v Marchant (1842) 1 Y & C Ch Cas 290 at 303; Malone v Malone [1925] 1 IR 140, CA (Ir) ('and
effects of every kind'); Re Fitzpatrick, Deane v De Valera (1934) 78 Sol Jo 735.
3 Cave v Cave (1762) 2 Eden 139; Camfield v Gilbert (1803) 3 East 516; Doe d Hick v Dring (1814) 2 M & S 448;
Henderson v Farbridge (1826) 1 Russ 479; Doe d Haw v Earles (1846) 15 M & W 450; Hall v Hall [1892] 1 Ch 361 at 365,
CA (Eng), per Lindley LJ . See also Vertannes v Robinson (1927) LR 54 Ind App 276, PC . Cf Smyth v Smyth (1878) 8 Ch
D 561 at 564-566, where Malins V-C dissented from Camfield v Gilbert (1803) 3 East 516 and Doe d Hick v Dring (1814) 2
M & S 448.
4 Hogan v Jackson (1775) 1 Cowp 299 (devise of residue of testator's 'effects, both real and personal') (affd (1776) 3 Bro
Parl Cas 388), and followed in Lord Torrington v Bowman (1852) 22 LJ Ch 236; Doe d Chillcott v White (1800) 1 East 33
(after devise of goods and land to A, power to give whatever A thought proper of her 'said effects' to B and C); Marquis of
Tichfield v Horncastle (1838) 2 Jur 610 (effects defined by references elsewhere in the will to 'real estate' and 'property');
Milsome v Long (1857) 3 Jur NS 1073 ('stock in trade, money, book debts and effects' carried a reversion in real estate);
Phillips v Beal (1858) 25 Beav 25 ('devise'); Hall v Hall [1892] 1 Ch 361, CA (Eng) (intention inferred from the words
'devise', 'wheresoever situate', 'property' etc); Re Wass, Re Clarke (1906) 95 LT 758 (meaning of 'personal estate and
effects' affected by charge of debts, use of 'devise' and words of limitation).
Page 125
5 Re O'Loughlin (1870) LR 2 P & D 102.
6 Gibbs v Lawrence (1860) 30 LJ Ch 170; Cross v Wilks (1866) 35 Beav 562; Watson v Arundel (1876) IR 10 Eq 299; Re
Hammersley, Heasman v Hammersley (1899) 81 LT 150.
7 As to the ejusdem generis rule see [330.109].
8 Gibbs v Lawrence (1860) 30 LJ Ch 170; Campbell v M'Grain (1875) IR 9 Eq 397; Re Miller, Daniel v Daniel (1889) 61 LT
365 (banknotes, securities and jewellery not included); Re Taylor, Barber v Smith (1919) 147 LT Jo 253 (car not included)
(see however note 12); Re Curling [1928] IR 521.
9 Michell v Michell (1820) 5 Madd 69 at 72 per Leach V-C .
10 Rawlings v Jennings (1806) 13 Ves 39 at 46.
11 MacPhail v Phillips [1904] 1 IR 155.
12 Joseph v Phillips [1934] AC 348, PC . The express inclusion of a desk does not include articles contained in it which
are not personal effects, such as pass books and promissory notes: Joseph v Phillips [1934] AC 348 at 352-353, PC ,
distinguishing Re Robson, Robson v Hamilton [1891] 2 Ch 559. Prima facie the meaning of 'personal effects' is such that it
would include stamp and coin collections and cars: Re Collins's Settlement Trusts, Donne v Hewetson [1971] 1 All ER 283,
[1971] 1 WLR 37. In the context, 'personal effects' may extend to the residuary personal estate: Re Wolfe [1919] 2 IR 491.
13 Buchanan v Harrison (1861) 31 LJ Ch 74; Belaney v Belaney (1867) 2 Ch App 138; Ex p Yates (1869) 20 LT 940; Re
Cook [1948] Ch 212, [1948] 1 All ER 231, where it was assumed that 'personal estate' was used as a term of art. In Re
Hey's Settlement Trusts, Hey v Nickell-Lean [1945] Ch 294, [1945] 1 All ER 618, 'property' in the expression 'income of
property actually producing income' was construed as 'property forming part of my estate'.
14 Doe d Tofield v Tofield (1809) 11 East 246 at 249 (property over which the testator had an absolute personal power of
disposition). See also Lines v Lines (1869) 22 LT 400; Cadman v Cadman (1872) LR 13 Eq 470 at 474 (freehold rights
conferred by navigation shares, if remaining realty, would pass under residuary gift of personal estate); Re Smalley,
Smalley v Smalley (1883) 49 LT 662; Re Wass, Re Clarke (1906) 95 LT 758.
15 Stuart v Marquis of Bute (1806) 11 Ves 657 at 666; Kendall v Kendall (1828) 4 Russ 360 at 370; Parker v Marchant
(1842) 1 Y & C Ch Cas 290 at 303; Avison v Simpson (1859) John 43.
16 See Lamphier v Despard (1842) 2 Dr & War 59 (residuary gift elsewhere in will); Manton v Tabois (1885) 30 Ch D 92 at
97.
17 Re Mills' Will Trusts, Marriott v Mills [1937] 1 All ER 142; Re Price, Wasley v Price [1950] Ch 242, [1950] 1 All ER 338
(explaining Re Bradfield, Bradfield v Bradfield [1914] WN 423). Cf Re Schott's Will Trusts (1968) 206 Estates Gazette 538
('belongings' comprised the whole of the testatrix's real and personal estate).
18 Re Hynes, Knapp v Hynes [1950] 2 All ER 879, CA (Eng) (particular gift, not carrying stocks and shares and bank
balance).
[330.144]
'Estate' or 'possessions'
'Estate', as a general description of property1, is not a technical word2, and prima facie, when used in a
suitable context, is a very wide term3 being sufficient to include the whole real4 and personal5 estate.
'Possessions' has a similar meaning6.
1 See Williams on Wills (7th Edn, 1995) vol 1 p 619.
2 Basset v St Levan (1894) 13 R 235 at 248-250.
3 See Hamilton Corp v Hodsdon (1847) 6 Moo PCC 76 at 82.
4 Countess of Bridgwater v Duke of Bolton (1704) 1 Salk 236; Churchill v Dibden (1754) 9 Sim 447n; Jongsma v Jongsma
(1787) 1 Cox Eq Cas 362 (copyholds); Midland Counties Rly Co v Oswin (1844) 1 Coll 74; Patterson v Huddart (1853) 17
Beav 210; Fullerton v Martin (1853) 22 LJ Ch 893; O'Toole v Browne (1854) 3 E & B 572; Meeds v Wood (1854) 19 Beav
215; Hawksworth v Hawksworth (1858) 27 Beav 1; Stein v Ritherdon (1868) 37 LJ Ch 369. See also Hounsell v Dunning
[1902] 1 Ch 512 at 520-521.
Page 126
5 As to the effect of the context in confining 'estate' to personal estate see Marhant v Twisden (1711) Gilb Ch 30;
Molyneux v Rowe (1856) 25 LJ Ch 570.
6 Re Brigden, Chaytor v Edwin [1938] Ch 205, [1937] 4 All ER 342. It seems that 'all my substance' also has a similar
meaning: Re Fox's Estate, Dawes v Druitt [1937] 4 All ER 664, CA (Eng) .
[330.145]
House and buildings
Words which prima facie describe only a house or other building may, in suitable contexts and
circumstances, include land necessary for the convenient use and occupation of it1. A gift of a house
'and premises' is prima facie sufficient to include such land2 and the appurtenances of the house3. Even
other land commonly enjoyed with the house may be included in such a description4. A gift of a house
prima facie includes chattels affixed to and used for the decoration or convenience of the house5.
1 See Williams on Wills (7th Edn, 1995) vol 1 p 621; Smith v Martin (1672) 2 Wms Saund 394; Smith v Ridgway (1866) LR
1 Exch 331 at 333-334, Ex Ch ('land so intimately connected with the use of the building that without it the building would
be useless'). See also Lombe v Stoughton (1849) 18 LJ Ch 400; Brown v Brown (1901) 1 SRNSW Eq 218.
2 Lethbridge v Lethbridge (1862) 4 De GF & J 35; Re Willis, Spencer v Willis [1911] 2 Ch 563 at 569.
3 Re Seal, Seal v Taylor [1894] 1 Ch 316 at 320, CA (Eng) . See also Read v Read (1866) 15 WR 165.
4 Blackborn v Edgley (1719) 1 P Wms 600 at 603; Gulliver d Jefferies v Poyntz (1770) 2 Wm Bl 726; Doe d Clements v
Collins (1788) 2 Term Rep 498; Doe d Hemming v Willetts (1849) 7 CB 709; Ross v Veal (1855) 1 Jur NS 751; Hibon v
Hibon (1863) 9 Jur NS 511 (the gifts, in the last three cases cited, were of a 'house and premises'); Mocatta v Mocatta
(1883) 49 LT 629; Re Willis, Spencer v Willis [1911] 2 Ch 563; Re Fuller, Arnold v Chandler (1915) 59 Sol Jo 304 (gift of a
house and land, described as 'now in the occupation of' R, held to include separate land leased to R before the making of
the will); Barclays Bank Ltd v Zeitler (1962) 182 Estates Gazette 291 (gift of home included garage and flat at rear of
garden of house and held on lease separate from but identical to lease of house). See also Heach v Prichard [1882] WN
140.
5 Re Whaley, Whaley v Roehrich [1908] 1 Ch 615.
[330.146]
Devise of land and other general devises
Where property is devised or bequeathed to any person without any words of limitation, such devise or
bequest is to be construed to pass the fee simple or such other right to the whole estate or interest in
such property which the testator had power to dispose of by will unless it appears by the will that only a
restricted interest was intended for such devisee or legatee1. A general disposition of land is to be
construed to include leasehold interests, unless a contrary intention appears from the will2.
A devise of 'real estate' may be such a general devise as previously mentioned3, but is more readily
given its technical meaning and will not generally pass leaseholds4, although it may do so where there is
no real estate5, or where the special circumstances or the context so require6. Similarly, 'lands and
tenements', although prima facie meaning real estate, will pass leaseholds if there is no real estate7, or if
the intention to include leaseholds is clear8.
Money held on trust for investment in land, as to which no effective election to reconvert the property has
been made, is ordinarily included under a description of 'land' or 'real estate' generally.
A gift of a house of which the testator is described as the owner and occupier is satisfied if the testator is
Page 127
the owner and would be rateable as occupier, even though the testator is not himself actually resident
there9.
A general devise or bequest of the estate or property of the testator described in a general manner
includes any property to which such description extends over which the testator has a general power of
appointment and operates as an execution of such power unless a contrary intention appears in the
will10.
1 See the Wills Act 1959 (Act 346) 21 (the corresponding English provision is the Wills Act 1837 (UK) s 28).
2 See Wilson v Eden (1850) 5 Exch 752, subsequent proceedings (1852) 16 Beav 153 (no restriction by addition of 'all
other my real estate in the country of D'; nor by fact that limitations were adapted to real estate only); Prescott v Barker
(1874) 9 Ch App 174 (provisions of will inconsistent with leaseholds being included). A contrary intention may be shown,
eg in a suitable context, by another gift of 'all my leasehold estate' (see Re Guyton and Rosenberg's Contract [1901] 2 Ch
591), or of 'all my personal estate wheresoever situated' (Butler v Butler (1884) 28 Ch D 66); but not by a mere gift of
personal estate simply, or by a specific bequest of a specified leasehold (Re Davison, Greenwell v Davison (1888) 58 LT
304).
3 Moase v White (1876) 3 Ch D 763, observed on in Butler v Butler (1884) 28 Ch D 66 at 75; Re Davison, Greenwell v
Davison (1888) 58 LT 304; Re Uttermare, Leeson v Foulis [1893] WN 158. See also Hester v Trustees, Executors and
Ageney Co Ltd (1892) 18 VLR 509. For the meaning of 'estate' see [330.144]; and for the meaning of 'personal estate' see
[330.143].
4 See Butler v Butler (1884) 28 Ch D 66, approving Wilson v Eden (1848) 11 Beav 237 at 252 per Lord Langdale MR ;
Prescott v Barker (1874) 9 Ch App 174 (applicability of limitations to real estate only). See also Smith v Baker (1737) 1 Atk
385 at 386; Parker v Marchant (1843) 5 Man & G 498; Turner v Turner (1852) 21 LJ Ch 843, where leasehold ground rents
were not included; Holmes v Milward (1878) 47 LJ Ch 522.
5 Re Holt, Holt v Holt [1921] 2 Ch 17.
6 See Swift v Swift (1859) 1 De GF & J 160.
7 Rose v Bartlett (1633) Cro Car 292 at 293.
8 Swift v Swift (1859) 1 De GF & J 160.
9 Re Garland, Eve v Garland [1934] Ch 620. Cf Re Rowell, Public Trustee v Bailey (1982) 31 SASR 361 (S Aust) , where
the gift of a residence forming the testatrix's principal place of abode at the time of her death was held to refer to her
residence before she was admitted as a patient to the mental hospital where she died.
[330.147]
'Money'
'Money' in a will has no strict technical meaning1. It was formerly construed strictly as comprehending
only cash under the testator's immediate control unless there was a context to extend its meaning, but it
has been judicially recognised that it is a word which in popular usage has a diversity of meanings, and
the rule now is that, in construing any particular will, the court must determine the meaning attached to
the word by the testator without any presumption that it bears any one of its possible meanings2. 'Money'
ordinarily includes cash and notes in hand3, money immediately payable to the testator at call4 and
money at a bank on current or deposit account5. It may include money in the hands of trustees awaiting
investment6, and investments readily able to be turned into money7; it may also include the whole of the
testator's personal estate8, and even his real estate9. On the other hand, the fact that a specific gift
comes after the gift in question may prevent it from being residuary, but it is not conclusive against its
being a residuary gift10, and the fact that there is a residuary gift elsewhere in the will may rebut the
inference that a gift of money is of a residuary nature11. 'Money' has in particular received a wide
meaning where the court has been influenced by the presumption against intestacy12.
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Qualifying words may necessitate a stricter construction; thus 'ready money', in its ordinary sense,
includes money on current account at a bank13 or in the hands of an agent acting as banker14, and
money on deposit account at a bank where no notice of withdrawal is required15; but it does not
ordinarily include money on deposit account where a substantial16 previous notice of withdrawal is
required17 according to the usual course of business18, or other choses in action generally19. Similarly,
the use of the word 'cash' may have a restrictive effect20. 'Cash at my bankers' includes money on
deposit, if that money is payable on demand, but not otherwise21. On the other hand, a wide construction
is permitted by the use of such terms as 'money due and owing'22, and by the description of money by its
investment situation23.
A gift of money invested in various stocks, if a gift of the particular investments mentioned, is adeemed
on a subsequent change of investment by the testator into stocks not coming within the description24.
The ordinary meaning of 'investments', unaffected by any context, does not include money on deposit at
a bank25; conversely, a gift of a bank deposit does not carry investments held for the testator by the
bank26.
1 Re Cadogan, Cadogan v Palagi (1883) 25 Ch D 154 at 157 per Kay J . Its meaning is flexible: Re Townley, Townley v
Townley (1884) 50 LT 394 at 396 per Pearson J .
2 Perrin v Morgan [1943] AC 399, [1943] 1 All ER 187, HL , where the earlier cases to the contrary were disapproved by
the majority of the House of Lords, but Lord Russell of Killowen (and, it seems, Lord Romer) thought that the old rule was
right but had been misapplied; Re Barnes's Will Trusts, Prior v Barnes [1972] 2 All ER 639, [1972] 1 WLR 587. Where
property not falling within the strict meaning of money is excepted from a gift of money, this is a reason for extending the
meaning: Re White (1882) 7 PD 65; Re Buller, Buller v Giberne (1896) 74 LT 406.
3 Downing v Townsend (1755) Amb 280 at 281; Barrett v White (1855) 1 Jur NS 652 at 653; Re Windsor, Public Trustee v
Windsor (1913) 108 LT 947, where money orders were treated as 'cash'.
4 Byrom v Brandreth (1873) LR 16 Eq 475 at 479; Re Friedman, Friedman v Friedman (1908) 8 SRNSW 127.
5 Manning v Purcell (1855) 7 De GM & G 55 at 64-67 (followed in Re Collings, Jones v Collings [1933] Ch 920); Harper's
Trustee v Bain (1903) 5 F 716 (money on deposit for four years included in 'moneys in any banks'); Re Glendinning, Steel
v Glendinning (1918) 88 LJ Ch 87 ('all my moneys at the bank'); Perrin v Morgan [1943] AC 399 at 421, [1943] 1 All ER
187 at 198, HL, per Lord Romer ; Re Trundle, Emanuel v Trundle [1961] 1 All ER 103, [1960] 1 WLR 1388. Cf Masson v
Smellie (1903) 6 F 148 (where 'money in banks' did not pass an unpaid legacy which was in fact in a bank); Re Boorer,
Boorer v Boorer [1908] WN 189 ('cash at bankers'); Re Lowe's Estate, Swann v Rockley [1938] 2 All ER 774 (where
money in which the testator had an interest, but which stood to an account over which he had no control, did not pass); Re
Stonham, Lloyds Bank Ltd v Maynard [1963] 1 All ER 337, [1963] 1 WLR 238 (where 'cash in X Bank' was in the context
held to include money on both current and deposit accounts. 'Money on my current account' may pass money on deposit
accounts). 'Money on my current account' may pass on deposit account, where the testator has never had a current
account (Re Vear, Vear v Vear (1917) 62 Sol Jo 159), but money 'to my account' has been held to mean money on current
account, and not to include money in the hands of trustees (Re Bradfield, Bradfield v Bradfield [1914] WN 423).
6 Ogle v Knipe (1869) LR 8 Eq 434.
7 For example where stock was included in 'money' in the wills considered in Lynn v Kerridge (1737) West temp Hard 172;
Waite v Combes (1852) 5 De G & Sm 676; Newman v Newman (1858) 26 Beav 218; Chapman v Reynolds (1860) 28
Beav 221, where the fact that the state of the property of the testatrix rendered it impossible that after payment of debts
the bequest could have anything except government stock to operate on was considered a reason for extending the
meaning; Hart v Hernandez (1885) 52 LT 217; Re Smith, Henderson-Roe v Hitchins (1889) 42 Ch D 302 at 303; Re
Adkins, Solomon v Catchpole (1908) 98 LT 667 (consols); and shares were included in Re Dutton, Herbert v Harrison
(1869) 20 LT 386. In Lloyd v Lloyd (1886) 54 LT 841, rents and a bond which would naturally come to the executors as
money passed. In O'Connor v O'Connor [1911] 1 IR 263, mortgages not able to be called in were excluded. Where the gift
is of money after payment of debts or legacies, or both debts and legacies, either generally out of the estate or out of
certain property, the gift is often construed as ejusdem generis with that made subject to the payment, and for this reason
may pass the residuary personal estate: Dicks v Lambert (1799) 4 Ves 725; Kendall v Kendall (1828) 4 Russ 360; Rogers
v Thomas (1837) 2 Keen 8; Dowson v Gaskoin (1837) 2 Keen 14; Barrett v White (1855) 1 Jur NS 652; Grosvenor v
Durston (1858) 25 Beav 97 at 99; Langdale v Whitfeld (1858) 4 K & J 426 at 436; Stocks v Barre (1859) John 54; Re
Egan, Mills v Penton [1899] 1 Ch 688.
8 Perrin v Morgan [1943] AC 399 at 407, [1943] 1 All ER 187 at 190, HL, per Viscount Simon LC and at 421-422 and 198
per Lord Romer . See also Legge v Asgill (1818) Turn & R 265n; Dowson v Gaskoin (1837) 2 Keen 14; Cowling v Cowling
(1859) 26 Beav 449 at 451 per Romilly MR ; Montagu v Earl of Sandwich (1863) 33 Beav 324; Re Pringle, Walker v
Stewart (1881) 17 Ch D 819; Re Cadogan, Cadogan v Palagi (1883) 25 Ch D 154; Re Maclean, Williams v Nelson (1894)
11 TLR 82; Re Bramley [1902] P 106; Re Skillen, Charles v Charles [1916] 1 Ch 518; Re Woolley, Cathcart v Eyskens
[1918] 1 Ch 33 (reversionary interest under settlement); Re Recknell, White v Carter [1936] 2 All ER 36 (effect of 'all'). In
Page 129
Re Townley, Townley v Townley (1884) 50 LT 394 personal estate except household furniture and effects passed. In
Prichard v Prichard (1870) LR 11 Eq 232, the testator had little money, strictly so called, but large personal estate and
some freehold property; and the whole of the personal estate, including leaseholds, passed, but not the freehold property.
9 Perrin v Morgan [1943] AC 399 at 407, [1943] 1 All ER 187 at 190, HL, per Viscount Simon LC . Cf Re Tribe, Tribe v
Truro Cathedral (Dean and Chapter) (1915) 85 LJ Ch 79; and as to the effect of 'all' see Re Jennings, Caldbeck v Stafford
and Lindemere [1930] 1 IR 196 at 206. In view of the present liability by statute of real and personal estate for payment of
debts, it may be that 'the remainder of any moneys' after payment of debts will carry residuary property, both real and
personal: Re Mellor, Porter v Hindsley [1929] 1 Ch 446; Re Shaw, Mountain v Mountain [1929] WN 246. Cf Re Emerson,
Morrill v Nutty [1929] 1 Ch 128, where 'residue of money at the time of my death' carried the residuary general estate, but
not freehold ground rents. In Stooke v Stooke (1866) 35 Beav 396 at 397, Romilly MR gave an instance where he
considered that realty would be comprised. See also Ferman v Ryan [1912] QSR 145. In Prichard v Prichard (1870) LR 11
Eq 232 at 235, Malins V-C said the words in that case could not be extended to the real estate, because of the favour
shown to the heir-at-law.
10 See Re Pringle, Walker v Stewart (1881) 17 Ch D 819 at 823; Re Townley, Townley v Townley (1884) 50 LT 394; Re
Maclean, Williams v Nelson (1894) 11 TLR 82.
11 Willis v Plaskett (1841) 4 Beav 208 at 210; Williams v Williams (1878) 8 Ch D 789, CA (Eng) ; Re Mann, Ford v Ward
[1912] 1 Ch 388 at 391 (distinguishing Re Adkins, Solomon v Catchpole (1908) 98 LT 667). In Re Capel, Arbuthnot v
Capel (1914) 59 Sol Jo 177, however, 'the rest of my money' passed a reversionary interest in personalty, even though
there was a further gift in form residuary.
12 See Lowe v Thomas (1854) Kay 369 at 377 per Page Wood V-C (on appeal 5 De GM & G 315); Boardman v Stanley
(1873) 21 WR 644; Re Cadogan, Cadogan v Palagi (1883) 25 Ch D 154 at 157 per Kay J .
13 Taylor v Taylor (1837) 1 Jur 401; Fryer v Ranken (1840) 11 Sim 55; Parker v Marchant (1842) 1 Y & C Ch Cas 290 at
305-306 (on appeal (1843) 1 Ph 356); Re Powell's Trust (1858) John 49.
14 Fryer v Ranken (1840) 11 Sim 55.
15 Stein v Ritherdon (1868) 37 LJ Ch 369; Mayne v Mayne [1897] 1 IR 324. See also Frederick Pordes v Uta Schreck
[1960] HKLR 29.
16 The opinion has been expressed that, if money on deposit with bankers is subject to more than 24 hours' notice of
withdrawal, it is not ready money: Re Price, Price v Newton [1905] 2 Ch 55 at 56 per Farwell J .
17 Mayne v Mayne [1897] 1 IR 324 (seven or ten days); Re Wheeler, Hankinson v Hayter [1904] 2 Ch 66 (14 days).
18 The waiver, by the bank, of the notice required does not make money so deposited 'ready money' (Mayne v Mayne
[1897] 1 IR 324), unless it is the usual course of business (Re Rodmell, Safford v Safford (1913) 108 LT 184). On the other
hand, a mere power to require notice for money, according to practice payable on demand, does not prevent money
deposited from being ready money: Re Cosgrove's Estate, Wills v Goddard (1909) Times 3 April. A common practice of
waiver on terms was not considered sufficient in Re Friedman, Friedman v Friedman (1908) 8 SRNSW 127.
19 Eg a sum due on note of hand (Re Powell's Trust (1858) John 49); money in the hands of an agent not acting as
banker (Smith v Butler (1846) 3 Jo & Lat 565; Cooke v Wagster (1854) 2 Sm & G 296 at 300, where, however, the sum in
question passed as 'money' generally); the apportioned parts of unreceived rent, dividends, interest, or pension (Fryer v
Ranken (1840) 11 Sim 55; May v Grave (1849) 3 De G & Sm 462; Stein v Ritherdon (1868) 37 LJ Ch 369); government or
other stock (Enohin v Wylie (1862) 10 HL Cas 1; Bevan v Bevan (1880) 5 LR Ir 57, CA (Ir) ); or a share of another
testator's residue (Re Andrews, Andrews v O'Mara (1899) 25 VLR 408).
20 Beales v Crisford (1843) 13 Sim 592 (gift of residue 'all but cash or moneys so called'; promissory notes, bonds and
long annuities held not to be within the exception); Nevinson v Lady Lennard (1865) 34 Beav 487 ('money , if any such
cash be remaining').
21 See Re Boorer, Boorer v Boorer [1908] WN 189 which was stated to lay down no general rule, and not followed, in Re
Stonham, Lloyds Bank Ltd v Maynard [1963] 1 All ER 337, [1963] 1 WLR 238, where in the context of the will as a whole
'cash in X Bank' was held to pass money in a deposit as well as in a current account. A sum in the (British) National
Savings Bank which could not, except as to small sums, be withdrawn without notice was held not to be cash: Re
Ashworth, Bent v Thomas (1942) 86 Sol Jo 134.
22 Bide v Harrison (1873) LR 17 Eq 76 (damages on claim enforced by executors). Money received after the testator's
death on claims which did not at the testator's death constitute debts (Stephenson v Dowson (1840) 3 Beav 342 (freight
not yet earned); Collins v Doyle (1826) 1 Russ 135; Martin v Hobson (1873) 8 Ch App 401), and the apportioned parts, for
the testator's lifetime, of dividends not declared until after his death (Re Burke, Wood v Taylor [1914] 1 IR 81), have been
held not to pass under such words as 'money due or owing'. 'Money due and owing' or 'money owing' may include, as a
rule, any sums payable at a future date or on a future contingency: Brown v Brown (1858) 6 WR 613 at 614 per Page
Wood V-C (money raisable on request; money left at bank until called for); Petty v Willson (1869) 4 Ch App 574 (money
receivable by executors under a policy of assurance); Re Derbyshire, Webb v Derbyshire [1906] 1 Ch 135 (money on
deposit at bank there included, whether notice of withdrawal was required or not; the presumption against intestacy was
Page 130
applied).
23 Gallini v Noble (1810) 3 Mer 691 ('money in the Bank of England', testator having no account there); Reilly v Stoney
(1865) 16 I Ch R 295 ('in the Bank of' I); Stooke v Stooke (1866) 35 Beav 396 ('in whatever it may be, in bonds or consols
or anything else'); Wilkes v Collin (1869) LR 8 Eq 338 ('in real securities'). See also Brennan v Brennan (1868) IR 2 Eq 321
('in the Bank of' I); Sealy v Stawell (1868) IR 2 Eq 326 ('in my drawer'); Re Pringle, Walker v Stewart (1881) 17 Ch D 819
('however invested'); Re Harding, Drew v St Thomas' Hospital (1910) 27 TLR 102 ('moneys invested in any banks or
institutions' included consols). Cf Langdale v Whitfeld (1858) 4 K & J 426 (money, of or to which testatrix might be
'possessed or entitled', included money due); Vaisey v Reynolds (1828) 5 Russ 12 ('moneys in hand', being contrasted
with money out at interest on security, included money due); Howell v Gayler (1842) 5 Beav 157 ('money I may have' in
books of the bank did not include stock in names of trustees); Loring v Thomas (1861) 1 Drew & Sm 497, Re Saxby,
Saxby v Kiddell [1890] WN 171 (money in savings bank); Re Glendinning, Steel v Glendinning (1918) 88 LJ Ch 87
('moneys at the bank'); and see Re Butler, Le Bas v Herbert [1894] 3 Ch 250 at 251.
24 Harrison v Jackson (1877) 7 Ch D 339; Re Sayer, McClellan v Clarke (1884) 50 LT 616; Re Robe, Slade v Walpole
(1889) 61 LT 497; Re Slater, Slater v Slater [1907] 1 Ch 665, CA (Eng) . Where, however, a testator describes property
with reference to the source from which he received it, no ademption results from change of investment: Morgan v Thomas
(1877) 6 Ch D 176.
25 Re Price, Price v Newton [1905] 2 Ch 55. See also Archibald v Hartley (1852) 21 LJ Ch 399; Re Sudlow, Smith v
Sudlow [1914] WN 424 (money on deposit with employer not 'invested'); but cf Re Lewis's Will Trusts, O'Sullivan v
Robbins [1937] Ch 118, [1937] 1 All ER 227.
26 Re Heilbronner, Nathan v Kenny [1953] 2 All ER 1016, [1953] 1 WLR 1254.
[330.148]
'Securities'
According to its literal meaning, 'securities' includes such money as is secured either on property1 or on
personal security2 (including even promissory notes3 and bills of exchange4), and any stock or other
investment which, by the terms of its creation, is a security for the payment of money5; but it does not
include money for which a mere acknowledgement of indebtedness has been given6, or the ordinary
description of stock and shares in a public company7. 'Securities' is, however, very commonly used as a
synonym for investments, or property dealt with on the Stock Exchange, and this meaning may readily
be attributed to the word8, and generally other meanings may be given to it, according to the context of
the will and the circumstances of the case9.
1 Cust v Goring (1854) 18 Beav 383 (Scottish heritable bond); Ogle v Knipe (1869) LR 8 Eq 434 (mortgage). Cf Robinson
v Robinson (1851) 1 De GM & G 247 at 262 (turnpike bonds). A vendor's lien was not considered a security in Goold v
Teague (1858) 5 Jur NS 116, but the case was doubted and distinguished in Callow v Callow (1889) 42 Ch D 550.
2 Eg a bond (Bacchus v Gilbee (1863) 3 De GJ & Sm 577; Re Beavan, Beavan v Beavan (1885) 53 LT 245 at 247 per Kay
J ) or policy of assurance (Lawrence v Galsworthy (1857) 3 Jur NS 1049); but see Re Lilly's Will Trusts, Public Trustee v
Johnstone [1948] 2 All ER 906, where policy money was excluded.
3 Re Beavan, Beavan v Beavan (1885) 53 LT 245; but see Stiles v Guy (1832) 4 Y & C Ex 571 (promissory note would not
be security for purposes of direction to trustees to invest in approved securities).
4 Barry v Harding (1844) 1 Jo & Lat 475 at 483 per Sugden LC ; but see Southcot v Watson (1745) 3 Atk 226 at 232
(banknotes).
5 Bescoby v Pack (1823) 1 Sim & St 500 (stock in public funds); Turner v Turner (1852) 21 LJ Ch 843 (consols, but not
insurance company's shares); Re Beavan, Beavan v Beavan (1885) 53 LT 245 (consols and railway debenture stocks). Cf
Hudleston v Gouldsbury (1847) 10 Beav 547 (shares in canal company not security for money).
6 Vaisey v Reynolds (1828) 5 Russ 12 (money at bank); Barry v Harding (1844) 1 Jo & Lat 475 (IOU); Hopkins v Abbott
(1875) LR 19 Eq 222 (banker's deposit notes); Re Beavan, Beavan v Beavan (1885) 53 LT 245 at 247 per Kay J (IOUs) .
See also Re Mason's Will (1865) 34 Beav 494 (legacy).
7 Harris v Harris (1861) 29 Beav 107; Ogle v Knipe (1869) LR 8 Eq 434 (bank stock); M'Donnell v Morrow (1889) 23 LR Ir
591 (shares in companies); Re Kavanagh, Murphy v Doyle (1892) 29 LR Ir 333, CA (Ir) (partly paid bank shares excluded
from trustee investment clause); Re Maitland, Chitty v Maitland (1896) 74 LT 274; Re Smithers, Watts v Smithers [1939]
Page 131
Ch 1015, [1939] 3 All ER 689. See also Re Hutchinson, Crispin v Hadden (1919) 88 LJ Ch 352.
8 Dicks v Lambert (1799) 4 Ves 725; Re Rayner, Rayner v Rayner [1904] 1 Ch 176, CA (Eng) . See also Re Johnson,
Greenwood v Greenwood (1903) 89 LT 520, CA (Eng) ; Re Mort, Perpetual Trustee Co Ltd v Bisdee (1904) 4 SRNSW
760; Re J H (1911) 25 OLR 132; Re Scorer, Burtt v Harrison (1924) 94 LJ Ch 196. A bequest of 'all money, shares and
securities at my bankers' does not pass stocks of which only stock receipts and inscription receipts are at the bank: Re
Hay Drummond, Halsey v Pechell (1922) 128 LT 621.
9 Dicks v Lambert (1799) 4 Ves 725 (stock included); Re Gent and Eason's Contract [1905] 1 Ch 386, where power to vary
securities included power to sell real estate; Re Douglas's Will Trusts, Lloyds Bank Ltd v Nelson [1959] 2 All ER 620,
[1959] 1 WLR 744 (affd on another point [1959] 3 All ER 785, [1959] 1 WLR 1212, CA (Eng) ), where 'power to invest in
securities' was held to include stocks or shares or bonds. For the meaning of 'securities standing in any name' see Re
Mayne, Stoneham v Woods [1914] 2 Ch 115. The term 'securities' means (1) debentures, stocks or bonds issued or
proposed to be issued by any government; (2) shares in or debentures of, a body corporate or an unincorporated body; or
(3) unit trusts or prescribed investments, and includes any right, option or interest in respect thereof: Securities
Commission Act 1993 (Act 498) s 2.
[330.149]
'Stocks and shares', and 'funds'
The natural meaning of 'stocks and shares' is stocks and shares of limited companies1. A bequest of
'shares' in a particular company may pass the testator's stock in that company which is of the same
nature as, and identical with, shares2, but prima facie3 not stock issued as security, such as debentures
or debenture stock4. For the purposes of an investment clause, 'stock' may include shares5.
Where in a will words of description refer to the funds, as in the case of 'funded property', 'money in the
funds' and like expressions, prima facie the reference is to such public funds6, but the context and the
circumstances may require a different construction7.
1 Re Everett, Prince v Hunt [1944] Ch 176, [1944] 2 All ER 19. In Re Purnchard's Will Trust, Public Trustee v Pelly [1948]
Ch 132, [1948] 1 All ER 790, the phrase was given a wide meaning, there being no residuary gift. As to limited companies
and shares in companies see COMPANIES (2011 Reissue) [150.038] and following, and [150.183] and following.
2 Morrice v Aylmer (1875) LR 7 HL 717, overruling Oakes v Oakes (1852) 9 Hare 666. Stock issued on a reconstruction of
a company may pass under a gift of 'all my shares', but not debentures: Re Humphreys, Wren v Ward (1915) 114 LT 230.
A bequest of 'my shares in different securities' does not carry an interest which the testator has as next of kin in shares
and stock forming part of the unadministered estate of an intestate: Re Holmes, Villiers v Holmes [1917] 1 IR 165. As to a
gift of shares including 'current dividends' see Re Raven, Spencer v Raven (1914) 111 LT 938; and as to the
apportionment of dividend on cumulative preference shares see Re Wakley, Wakley v Vachell [1920] 2 Ch 205, CA (Eng) .
Whether bonus shares will pass to a tenant for life under a gift of 'dividends, bonuses and income' depends on whether
they are issued as capital or income: Re Speir, Holt v Speir [1924] 1 Ch 359, CA (Eng) . In Re Quibell's Will Trusts, White
v Reichert [1956] 3 All ER 679, [1957] 1 WLR 186, a bequest of shares in a company to be formed after the testator's
death carried shares in the company, even though it was in fact formed by the testator in his lifetime. See also Frederick
Pordes v Uta Schreck [1960] HKLR 29 ('deposit' included shares).
3 See, however, Re Weeding, Armstrong v Wilkin [1896] 2 Ch 364, where the testator had no shares.
4 Dillon v Arkins (1885) 17 LR Ir 636, CA (Ir) ; Re Bodman, Bodman v Bodman [1891] 3 Ch 135; Re Connolly, Walton v
Connolly (1914) 110 LT 688; Re Humphreys, Wren v Ward (1915) 114 LT 230. A direction to invest in stocks, shares or
convertible debentures 'in the blue chip category' is too uncertain to be enforceable: Re Kolb's Will Trusts [1962] Ch 531,
[1961] 3 All ER 811.
5 See Re Inman, Inman v Inman [1915] 1 Ch 187. Cf Re Willis, Spencer v Willis [1911] 2 Ch 563.
6 Slingsby v Grainger (1859) 7 HL Cas 273. See also Ridge v Newton (1842) 2 Dr & War 239; Burnie v Getting (1845) 2
Coll 324; Ellis v Eden (1857) 23 Beav 543; Howard v Kay (1858) 27 LJ Ch 448; Brown v Brown (1858) 6 WR 613; Wilday v
Sandys (1869) LR 7 Eq 455.
7 Mangin v Mangin (1852) 16 Beav 300; Ellis v Eden (1857) 23 Beav 543 (foreign funds); Slingsby v Grainger (1859) 7 HL
Cas 273; Cadett v Earle (1877) 5 Ch D 710.
Page 132
[330.150]
Miscellaneous terms
In the construction of wills, the meaning in various contexts of the following terms has been discussed:
'arrears of rent'1; 'articles of domestic use or ornament'2; 'articles of vertu'3; 'bonds'4; 'books'5; 'cash'6;
'debentures'7; 'fortune'8; 'furniture'9; 'horses'10 and 'bloodstock'11; 'household effects'12, 'household
furniture'13, 'household furniture and effects'14, 'household goods'15, 'personal and household goods and
effects'16, 'contents of my house' or 'home'17, and similar expressions18; 'jewellery'19; 'movables'20;
'pictures'21; 'plate'22; and 'private papers'23. 'Pensions and allowances' has been held not to include
subscriptions and donations which are purely voluntary24. 'Wages' has been held to mean fixed cash
payments, and not other benefits such as commission25.
1 Re Ford, Myers v Molesworth [1911] 1 Ch 455.
2 Petre v Ferrers (1891) 61 LJ Ch 426 (not relics); Re Owen, Peat v Owen (1898) 78 LT 643.
3 Re Baroness Zouche, Dugdale v Baroness Zouche [1919] 2 Ch 178; Re Tomline's Will Trusts, Pretyman v Pretyman
[1931] 1 Ch 521. See also Re Lord Londesborough, Bridgeman v Lord Fitzgerald (1880) 50 LJ Ch 9, 43 LT 408.
4 Bonds are instruments under seal, and do not include certificates of stock not sealed: Re Manners, Manners v Manners
[1923] 1 Ch 220.
5 Manuscript letters bound in volumes may pass as 'books' (Re Tomline's Will Trusts, Pretyman v Pretyman [1931] 1 Ch
521 (certain of the 'Paston Letters')); so also may a manuscript log book (Re Barratt, Barratt v Coates (1915) 31 TLR 502,
CA (Eng) ). See also Re Masson, Morton v Masson (1917) 86 LJ Ch 753, CA (Eng) (stamp collection not included in
'books'), disapproving Re Fortlage, Ross v Fortlage (1916) 60 Sol Jo 527.
6 See [330.147].
7 Re Herring, Murray v Herring [1908] 2 Ch 493 (debenture stock included). See also Phillips v Eastwood (1835) L & G
temp Sugd 270 at 291-292 (policies of assurance included under the particular will). The decision in Re Lane, Luard v
Lane (1880) 14 Ch D 856 (debenture stock not included) has sometimes been doubted: see Dillon v Arkins (1885) 17 LR Ir
636, CA (Ir) . A gift of debenture stock passes debentures if no debenture stock exists to satisfy the gift: Re Nottage, Jones
v Palmer (No 2) [1895] 2 Ch 657, CA (Eng) .
8 Baring v Ashburton (1886) 54 LT 463. See also Bacon v Cosby (1851) 4 De G & Sm 261; Spearing v Hawkes (1857) 61
Ch D 297.
9 Re Seton-Smith, Burnand v Waite [1902] 1 Ch 717 (tenant's and trade fixtures there excluded). See also Hele v Gilbert
(1752) 2 Ves Sen 430 (china); Cremorne v Antrobus (1829) 5 Russ 312; Holden v Ramsbottom (1863) 4 Giff 205 (plated
articles); Re Lord Londesborough, Bridgeman v Lord Fitzgerald (1880) 50 LJ Ch 9, 43 LT 408 (pictures); Petre v Ferrers
(1891) 61 LJ Ch 426 (not relics); Re Willey, Goulding v Shirtcliffe (1924) 45 TLR 327 (cabinet wireless set). Books as a
rule are not included, at any rate in an eighteenth-century will (Bridgeman v Dove (1744) 3 Atk 201 at 202; Kelly v Powlet
(1763) Amb 605; Cremorne v Antrobus (1829) 5 Russ 312 at 321; Porter v Tournay (1797) 3 Ves 311), but it seems that,
having regard to modern habits of life, an intention to include books in the term is now readily inferred (see Re Holden
(1903) 5 OLR 156 at 162), eg in a gift of a house and its furniture, as kept up in the testator's lifetime (Ouseley v Anstruther
(1847) 10 Beav 453 at 462; Hutchinson v Smith (1863) 1 New Rep 513). In Re Crispin's Will Trusts, Arkwright v Thurley
[1975] Ch 245, [1974] 3 All ER 772, CA (Eng) , it was held that clocks do not cease to be furniture because they form part
of a collection.
10 Re Sykes, Skelton and Dyson v Sykes [1940] 4 All ER 10, where an interest as tenant in common in three horses did
not pass.
11 Re Gillson, Ellis v Leader [1949] Ch 99, [1948] 2 All ER 990, CA (Eng) , where a half share in a thoroughbred horse
passed but not a fortieth interest in another horse managed by a syndicate, as this interest was in the nature of an
investment.
12 Re Bourne, Bourne v Brandreth (1888) 58 LT 537 (wine included) (following Cole v Fitzgerald (1823) 1 Sim & St 189
(on appeal (1827) 3 Russ 301); Re Ashburnham, Gaby v Ashburnham (1912) 107 LT 601; Re White, White v White [1916]
1 Ch 172; Re Fortlage, Ross v Fortlage (1916) 60 Sol Jo 527 (in the last three cases cited a car was included); Burnside v
Burnside (1921) 56 ILT 20 (furniture and books in college rooms included); Re Baron Wavertree of Delamere, Rutherford v
Hall-Walker [1933] Ch 837 (cars, consumable stores, garden implements and movable plants included).
13 Kelly v Powlet (1763) Amb 605 (plate, pictures etc); Manning v Purcell (1855) 7 De GM & G 55 at 68 (such part of
tavern furniture as was for domestic or personal use); Stone v Parker (1860) 1 Drew & Sim 212 (cows, horses and farming
Page 133
stock prima facie excluded); Finney v Grice (1878) 10 Ch D 13 (tenant's fixtures excluded).
14 Pratt v Jackson (1726) 1 Bro Parl Cas 222 (furniture in house let furnished excluded); Northey v Paxton (1888) 60 LT
30 (not jewellery). See also Tempest v Tempest (1856) 2 K & J 635 (personal ornaments and chattels not for use or
ornament in the house excluded); Field v Peckett (No 2) (1861) 29 Beav 573 (ornaments); Stone v Parker (1860) 1 Drew &
Sim 212 (not farming stock); Re Hammersley, Heasman v Hammersley (1899) 81 LT 150 (jewellery excluded); MacPhail v
Phillips [1904] 1 IR 155 (stock in trade excluded); Re Howe, Ferniehough v Wilkinson [1908] WN 223 (car included); Re
White, White v White [1916] 1 Ch 172 (cars included); Re Fothergill, Horwood v Fothergill (1916) 51 L Jo 169 (kangaroos
and various birds held not to pass under gift of 'articles of household use or ornament').
15 Pellew v Horsford (1856) 2 Jur NS 514. See also Nicholls v Osborn (1727) 2 P Wms 419; Stapleton v Conway (1750) 1
Ves Sen 427; Re Johnson, Sandy v Reilly 49 Sol Jo 314 ('household property' shown to mean residue).
16 Re Mengel's Will Trusts, Westminster Bank Ltd v Mengel [1962] Ch 791, [1962] 2 All ER 490 (library of books, etchings
and mountain photographs shown by context not to be included). For the meaning of 'effects' and 'personal effects' see
[330.143].
17 Re Eumorfopoulos, Ralli v Eumorfopoulos [1944] Ch 133, [1943] 2 All ER 719 (articles normally kept in the house but
temporarily sent away included; articles at the bank or occasionally at the house excluded); Re Abbott, Public Trustee v St
Dunstan's, British Home and Hospital for Incurables and Trustees of Western Ophthalmic Hospital and Lady Dugan [1944]
2 All ER 457 (choses in action not included).
18 In ascertaining what passes under such a bequest in the will of a tradesman, the court will direct an inquiry,
distinguishing articles used for his own domestic or personal use and those used in trade or as merchandise: see the
decree in Le Farrant v Spencer (1748) 1 Ves Sen 97 (cited in Manning v Purcell (1855) 7 De GM & G 55 at 64n).
19 Re Whitby, Public Trustee v Whitby [1944] Ch 210, [1944] 1 All ER 249.
20 Re Walsh, Walsh v Walsh [1953] Ch 473, [1953] 1 All ER 982 (movable chattels only).
21 Re Du Maurier, Millar v Coles (1916) 32 TLR 579; Re Layard, Layard v Earl of Bessborough (1916) 85 LJ Ch 505, CA
(Eng) (appeal withdrawn on terms (1917) 33 TLR 261, HL ); Re Lane, Meagher v National Gallery for Ireland (1917) 33
TLR 418 (right to have portrait painted).
22 Holden v Ramsbottom (1863) 4 Giff 205 (plated articles excluded), not followed in Re Grimwood, Trewhella v Grimwood
[1946] Ch 54, [1945] 2 All ER 686 (Sheffield plate and electro-plate included). See also Re Lewis, Prothero v Lewis (1909)
26 TLR 145 (silver-mounted articles excluded); Field v Peckett (No 2) (1861) 29 Beav 573 at 574.
23 Re Dickens, Dickens v Hawkesley [1935] Ch 267, CA (Eng) .
24 Re Scott, Scott v Scott (No 2) (1915) 31 TLR 505.
25 Re Smith, Phillips v Smith [1915] WN 12; Re Peacock, Public Trustee v Birchenough (1929) 45 TLR 301. See also Re
Whelan, Doyle v Woodliff (1922) 153 LT Jo 47.
[330.151]
Release of debts
Where a testator by his will releases all debts owing to him, it depends on the circumstances whether
this is confined to personal debts1, or extends to business or other debts2, and whether or not both
secured and unsecured debts are released3.
1 Re Neville, Neville v First Garden City Ltd [1925] Ch 44.
2 Midland Bank Executor and Trustee Co Ltd v Yarners Coffee Ltd [1937] 2 All ER 54. Even on this wider construction the
release will not, it seems, extend to money at a bank on current or deposit account: Midland Bank Executor and Trustee
Co Ltd v Yarners Coffee Ltd [1937] 2 All ER 54 at 56-57. Where there is a direction that debts due from a legatee are to be
brought into account, and the debts exceed the legacy, there is no release of the excess: Re Clark, Cross v Hillis [1924]
WN 75.
3 Re Coghill, Drury v Burgess [1948] 1 All ER 254, where unsecured, but not secured, debts were released.
Page 134
[330.152]
Residuary gifts
In a suitable context, many words are capable of denoting the whole or the residue of the testator's real
and personal estate1. A gift of 'the remainder' of the residuary fund may, on the construction of the will,
be either a gift of the balance of the fund after a deduction of previous gifts out of it, or a gift of the whole
fund subject to the previous gifts; in the latter case, but not the former, the gift of the fund carries with it
any previous gift which fails2.
1 Blight v Hartnoll (1883) 23 Ch D 218 at 222, CA (Eng) . See also Huxtep v Brooman (1785) 1 Bro CC 437 ('all I am
worth'); Doe d Wall v Langlands (1811) 14 East 370 ('the residue of all my property, goods and chattels'); Fleming v
Burrows (1826) 1 Russ 276 ('or what else I may then be possessed of at my decease'); Wilce v Wilce (1831) 7 Bing 664
('everything else I die possessed of'); Cogswell v Armstrong (1855) 2 K & J 227 ('all other real and personal estate'); Re
Greenwich Hospital Improvement Act (1855) 20 Beav 458 ('all my other property of every description'); Attree v Attree
(1871) LR 11 Eq 280 ('all the rest'); Smyth v Smyth (1878) 8 Ch D 561 ('all the rest, residue and all other my effects'); Re
Johnson, Sandy v Reilly (1905) 49 Sol Jo 314 ('the remainder of my household property'); Re Craven, Crewdson v Craven
(1908) 24 TLR 750 ('the rest of my investments'); Re Brace, Gurton v Clements [1954] 2 All ER 354, [1954] 1 WLR 955
('any possessions I may have'). It seems that 'etc' may suffice: Chapman v Chapman (1876) 4 Ch D 800; Re Andrew's
Estate, Creasey v Graves (1902) 50 WR 471. For the meaning of 'effects' see [330.143], and for the meaning of 'estate'
see [330.144].
2 Re Parnell, Ranks v Holmes [1944] Ch 107.

Page 135
Administration and Succession/(1) Wills/(4) Construction of Particular Dispositions/ B. Persons Entitled to
Take/ (i) Time of Ascertainment of Donees/ (A) In General
B. PERSONS ENTITLED TO TAKE
(i) Time of Ascertainment of Donees
(A) In General
[330.153]
General considerations
The ascertainment of the donee is an element in ascertaining the vesting of a gift. Accordingly, the
presumption in favour of early vesting has been invoked, in doubtful cases, to assist in determining
which of various persons was intended by a description capable of denoting any of them1; but in
general this presumption does no more than suggest the most desirable method of carrying the
testator's intention into effect, and does not assist in finding out whom he intended as the objects of his
bounty2. In a class gift, an express direction as to vesting (for example at a specified age), or a gift
over, is in general immaterial in ascertaining the class3, unless it alters the description of the class4.
1 Radford v Willis (1871) 7 Ch App 7 at 10. The 'rules of convenience' (see [330.159]-[330.162]) are sometimes said to
be directed to make the property vest as early as possible: Gimblett v Purton (1871) LR 12 Eq 427 at 430.
2 Doe d Smith v Fleming (1835) 2 Cr M & R 638 at 654 per Lord Abinger CB .
3 Williams v Haythorne Williams v Williams, (1871) 6 Ch App 782. See also Re Payne (1858) 25 Beav 556 (vested at
21 or on leaving issue at death before that age).
4 Williams v Russell (1863) 10 Jur NS 168; Re Knowles, Nottage v Buxton (1882) 21 Ch D 806.
[330.154]
Gifts to individuals
Where the donee is designated by a description which may at different times apply to different
individuals, and the context does not point to any specific future time as the time at which the donee is
to be ascertained, then prima facie the only person who is entitled to take is the one who satisfies the
description at the date of the will1, provided that there is a person who to the testator's knowledge then
satisfies it2. Where the context shows that the donee is to be ascertained in the future, but does not
show at what specific time, then the first person to satisfy the description is presumed to be intended3.
The context may however, show that the donee in each case is to be ascertained at the testator's
death4, or some other definite future time5. Where a qualification is required as a condition precedent to
the vesting of an interest, the qualification must be satisfied at the date when the interest vests in
possession6.
1 The provisions of the Wills Act 1959 (Act 346) s 18 (which is equivalent to the Wills Act 1837 (UK) s 24) (see [330.141])
do not apply with reference to the donees: Bullock v Bennett (1855) 7 De GM & G 283 at 285-286. As to where the
designation is that of the holder of an office see Re Jones' Estate (1927) 43 TLR 324.
Page 136
2 Thompson v Thompson (1844) 1 Coll 381 at 388-391 (eldest son at date of codicil took); Re Whorwood, Ogle v Lord
Sherborne (1887) 34 Ch D 446, CA (Eng) (to 'Lord S'); Amyot v Dwarris [1904] AC 268, PC ('the eldest son of my
sister'). See also Lomax v Holmden (1749) 1 Ves Sen 290. As to gifts to the holder of an office and as to gifts to a 'wife'
see [330.202] and [330.186] respectively. As to gifts to servants see [330.200].
3 Radford v Willis (1871) 7 Ch App 7 (gift to future 'husband' of daughter unmarried at date of will); Re Hickman,
Hickman v Hickman [1948] Ch 624, [1948] 2 All ER 303 (gift to future 'wife' of grandson unmarried at testatrix's death).
4 Re Laffan and Downes' Contract [1897] 1 IR 469 (superiors of two convents at the testatrix's death); Re Daniels,
London City and Midland Executor and Trustee Co Ltd v Daniels (1918) 87 LJ Ch 661 (legacy to the Lord Mayor 'for the
time being'; the holder of the office at the testator's death held entitled).
5 See Re Earl of Cathcart (1912) 56 Sol Jo 271 (gift to a successor to a title); Re Earl of Caledon, Almander v Earl of
Caledon [1915] 1 Ch 150 (gift of chattels to the person who should become entitled to a house).
6 Re Allen, Faith v Allen [1954] Ch 259, [1954] 1 All ER 526.
[330.155]
Gifts to groups of individuals
If the gift is immediate and is a separate bequest of a specific amount to each one of a group of certain
children who are to take as individuals and not as a class, prima facie only those in existence at the
testator's death may take, and those coming into existence afterwards are excluded1. The fact that at
the date of the will or of the testator's death there are no members of the group in existence does not
render future members admissible2. If such a gift is postponed, all those who come into existence
before the time of distribution are let in3. The rule is grounded on the inconvenience of postponing
distribution until all the children who might be born and the total amount of their bequests can be
ascertained4, and accordingly it does not apply where by the provisions of the will this inconvenience
does not exist5, or is expressly contemplated by the testator6.
1 Garbrand v Mayot (1689) 2 Vern 105 (child born after date of will); Ringrose v Bramham (1794) 2 Cox Eq Cas 384 (a
legacy 'to every child he hath by his wife E'); Storrs v Benbow (1833) 2 My & K 46 (on appeal (1853) 3 De GM & G 390)
(gift to 'each child that may be born to' certain persons; a child en ventre sa m re was held to be included, but other
children born after the death of the testator were excluded); Townsend v Early (1860) 3 De GF & J 1 ('may be born'
covered only those born between the date of the codicil and the testator's death or en ventre leur m res at his death).
See also Butler v Lowe (1839) 10 Sim 317 (under a gift to each of the children of certain persons, begotten or to be
begotten, children born after the death of the testator were excluded); Peyton v Hughes (1842) 7 Jur 311; Mann v
Thompson (1854) Kay 628 ('to all and every the child and children'); Rogers v Mutch (1878) 10 Ch D 25 ('to each of the
children who shall live to attain' 21); Re Thompson's Will, Brahe v Mason [1910] VLR 251; Re Bellville, Westminster
Bank Ltd v Walton [1941] Ch 414, [1941] 2 All ER 629, CA (Eng) ('any daughter of B born after the date of this my will').
2 Mann v Thompson (1854) Kay 628 at 644; Rogers v Mutch (1878) 10 Ch D 25.
3 A-G v Crispin (1784) 1 Bro CC 386.
4 Mann v Thompson (1854) Kay 628 at 643; Rogers v Mutch (1878) 10 Ch D 25; Re Bellville, Westminster Bank Ltd v
Walton [1941] Ch 414 at 418, [1941] 2 All ER 629 at 631, CA (Eng) .
5 Re Bellville, Westminster Bank Ltd v Walton [1941] Ch 414 at 419, [1941] 2 All ER 629 at 632, CA (Eng) . In Evans v
Harris (1842) 5 Beav 45, a fund was set apart out of which alone the legacies in question were payable; a child born after
the testatrix's death was let in.
6 Re Bellville, Westminster Bank Ltd v Walton [1941] Ch 414 at 419, [1941] 2 All ER 629 at 632, CA (Eng) . See also
Defflis v Goldschmidt (1816) 1 Mer 417 (postponed gift; all members included).
Page 137
Take/ (i) Time of Ascertainment of Donees/ (B) Class Gifts
(B) Class Gifts
[330.156]
Time when class ascertained
In class gifts the interests of all the members must vest in interest at the same time; so, for example, if
there is a gift to A for life and then to B and the children of C, the class must vest in interest at the
testator's death, even though it is capable of enlargement by the birth of subsequent children of C
during the lifetime of the tenant for life1. The class may be ascertained at any particular point of time2,
for example, at the death of the testator3 or of the tenant for life4, or during the testator's lifetime at the
date when he made his will5, and the period of distribution may be postponed to a different and later
time6.
The words of the will may clearly indicate the point of time at which the class is to be ascertained; thus,
in a gift to children 'now living', only those in existence at the date of the will can take, and all children
born after that date are excluded7. Similarly, in a gift to children living at the death of the testator or any
other person8, or at any particular future time9, or to children now born or to be born during the lifetime
of their named parent10, the time of ascertaining the class is fixed by the express words of the will. In
order to close a class, the court will not presume that a woman is past childbearing11. The
postponement of vesting and distribution must not infringe the rule against perpetuities12.
1 Kingsbury v Walter [1901] AC 187 at 194, HL, per Lord Davey ; Re Drummond's Settlement, Foster v Foster [1988] 1
All ER 449, [1988] 1 WLR 234, CA (Eng) .
2 Re Hannam, Haddelsey v Hannam [1897] 2 Ch 39.
3 Viner v Francis (1789) 2 Cox Eq Cas 190; Leigh v Leigh (1854) 17 Beav 605; Sanders v Ashford (1860) 28 Beav 609.
4 Smith v Smith (1837) 8 Sim 353; Lee v Pain (1844) 4 Hare 201 at 250.
5 Re Hornby's Will (1859) 7 WR 729.
6 Re Hannam, Haddelsey v Hannam [1897] 2 Ch 39.
7 James v Richardson (1677) 1 Eq Cas Abr 214 pl 11; affd (1678) Freem KB 472n, HL .
8 Barker v Lea (1814) 3 Ves & B 113; Jennings v Newman (1839) 10 Sim 219 (where the gift was postponed to a life
estate to one of the class, who was held to take); Turner v Hudson (1847) 10 Beav 222; Re Helsby, Neate v Bozie (1914)
84 LJ Ch 682 (where the gift was to the next of kin of the testator at the death of the tenant for life); Re Bulcock, Ingham
v Ingham [1916] 2 Ch 495 (where the gift was to an artificial class of next of kin of a special kind). Where the next of kin
are to be ascertained at a specified time subsequent to the death of the testator, the class is ascertained on the
hypothesis that the testator dies at the specified time: Hutchinson v National Refuges for Homeless and Destitute
Children [1920] AC 795, HL .
9 Jee v Audley (1787) 1 Cox Eq Cas 324; Hughes v Hughes (1807) 14 Ves 256 (youngest grandchild attaining 21); Dodd
v Wake (1837) 8 Sim 615; Boughton v Boughton (1848) 1 HL Cas 406; Hodson v Micklethwaite (1854) 2 Drew 294;
Stuart v Cockerell (1870) 5 Ch App 713. See also Re Deighton's Settled Estates (1876) 2 Ch D 783, CA (Eng) ; Wylie's
Trustees v Bruce 1919 SC 211 (gift to heirs of A after life estate); Conolly v Brophy (1920) 54 ILT 41 (bequest to children
surviving when youngest attains 21). Where life interests are given to several persons in succession, and on the death of
the last-named person there is a gift to a class of persons 'then living', the word 'then' is generally to be taken as referring
grammatically to the death of that person, even where his death took place before that of the testator: Archer v Jegon
(1837) 8 Sim 446; Re Milne, Grant v Heysham (1887) 56 LJ Ch 543 (affd (1888) 57 LT 828, CA (Eng) ); Palmer v Orpen
[1894] 1 IR 32. In Gaskell v Holmes (1844) 3 Hare 438, 'then' was referred to the death of the testator, and in
Widdicombe v Muller (1853) 1 Drew 443, 'then' was referred to the death of an annuitant.
Page 138
10 Scott v Earl of Scarborough (1838) 1 Beav 154.
11 Re Deloitte, Griffiths v Deloitte [1926] Ch 56, applying Jee v Audley (1787) 1 Cox Eq Cas 324.
12 See [330.049], [330.050].
[330.157]
Gift to class on contingency
Where there is a gift to a class on a contingent event, the time of happening of the contingency is not
imported into the description of the individuals composing the class1. The circumstance, however, that
the gift is only to take effect upon the happening of the contingency is to be taken into consideration in
combination with indications of the testator's intention to be found in other parts of his will2, and, on the
whole of the will, the description of the class may be varied and the contingency applied to the class3.
1 Boulton v Beard (1853) 3 De GM & G 608 at 612 per Turner LJ ; Hickling v Fair [1899] AC 15 at 35, HL, per Lord
Davey ; Re Walker, Dunkerly v Hewerdine [1917] 1 Ch 38; Re Sutcliffe, Alison v Alison [1934] Ch 219. Hence the
contingency that there are to be issue living at the time of distribution is not imported into the description of the issue who
are to take, so as to exclude issue who have died before the date of distribution: Re Sutcliffe, Alison v Alison [1934] Ch
219.
2 Selby v Whittaker (1877) 6 Ch D 239 at 250, CA (Eng), per Baggallay LJ .
3 Selby v Whittaker (1877) 6 Ch D 239, CA (Eng) . Thus, in a gift (if a named person should leave any child) to all his
children, the class is not restricted to children whom he leaves at his death: Boulton v Beard (1853) 3 De GM & G 608;
M'Lachlan v Taitt (1860) 2 De GF & J 449. The context may, however, show the contrary, eg, if the gift is to 'such'
children (Re Watson's Trusts (1870) LR 10 Eq 36; and see Sheffield v Kennett (1859) 4 De G & J 593), or is to 'vest' (in
the legal sense) at the death of the parent (Selby v Whittaker (1877) 6 Ch D 239, CA (Eng) . See also Wilson v Mount
(1854) 19 Beav 292 (gift over, if no 'such' issue)).
[330.158]
Rules of convenience
Where it cannot be gathered, from the context and circumstances, what time is referred to for
ascertaining a class, the court acts upon certain rules of construction1 which have been framed for the
convenience of the donees and the administration of the property, and have accordingly been called
rules of convenience2.
1 As to these rules see [330.159] and following. They are not overriding rules of law: see Re Wernher's Settlement
Trusts, Lloyds Bank Ltd v Earl Mountbatten [1961] 1 All ER 184 at 187, [1961] 1 WLR 136 at 139 per Buckley J , citing
Re Bleckly, Bleckly v Bleckly [1951] Ch 740 at 750, [1951] 1 All ER 1064 at 1070, CA (Eng) ; and Re Drummond's
Settlement, Foster v Foster [1988] 1 All ER 449, [1988] 1 WLR 234, CA (Eng) . The testator should, it seems, be taken to
have framed his trust with the rule in mind, unless the assumption is conclusively negatived by the words of the will: see
Re Wernher's Settlement Trusts, Lloyds Bank Ltd v Earl Mountbatten [1961] 1 All ER 184 at 189, [1961] 1 WLR 136 at
141.
2 Re Emmet's Estate, Emmet v Emmet (1880) 13 Ch D 484, CA (Eng) ; Re Powell, Crosland v Holliday [1898] 1 Ch 227
at 230 per Kekewich J . As to what gifts are subject to the rules see [330.164]. The rules are admittedly 'not founded on
any view of the testator's intention' (Re Emmet's Estate, Emmet v Emmet (above) at 490 per Jessel MR ; Re Roberts,
Repington v Roberts-Gawen (1881) 19 Ch D 520 at 527, CA (Eng) ), and are 'artificial' (Leake v Robinson (1817) 2 Mer
363 at 383 per Grant MR ; Re Chartres, Farman v Barrett [1927] 1 Ch 466). The rules generally for ascertainment of a
class, both as to personal property and real property are said to be founded on the presumption that only persons in
being are intended to take: Ellison v Airey (1748) 1 Ves Sen 111 at 114; Crone v Odell (1811) 1 Ball & B 449 at 459 (affd
(1815) 3 Dow 61, HL ); Bartleman v Murchison (1831) 2 Russ & M 136 at 140.
Page 139
[330.159]
The first rule of convenience
The first rule of convenience is as follows: a class1 is prima facie composed of those members (if any)
existing, ascertainable and capable of taking2 at the date of distribution3, which is usually at the
testator's death4, but, where the date of distribution is later, the class opens so as to let in all those
members coming into existence before the date of distribution5. Where, however, the gift is immediate,
but at the testator's death no member of the class has yet come into existence, then prima facie all the
members of the class who are born at any future period are intended to take under the gift6.
The class is ascertained independently of those members of it who die before the testator; there is no
question of lapse of their shares, and they are not included7; nor, formerly, even where they were issue
of the testator, did they take by leaving issue living at his death, even if the class consisted of only one
person8. However, under the will of a testator who dies on or after 1 April 1960, if the class consists of
children or remoter descendants of his, and a member of that class dies before him leaving issue, and
issue of that member are living at the testator's death, then, unless a contrary intention appears by the
will, the devise or bequest takes effect as if the death of that member had happened immediately after
the death of the testator and the class included the deceased member9.
As regards members of a class taking under a postponed gift, the death of any one of them who has
survived the testator but dies before the date of distribution does not defeat his interest10, provided that
the contingency of surviving that date is not part of the description of the class11. Thus, the objects
among whom the property becomes ultimately divisible are those members of the class who may be
living at the date of distribution, and the representatives of such as may have died before that date
having survived the testator12.
1 As to what kinds of classes are subject to this rule see [330.163].
2 See Fell v Biddolph (1875) LR 10 CP 701 at 709, where two of the class had attested the will; Re Coleman and Jarrom
(1876) 4 Ch D 165 at 169-173 per Jessel MR .
3 As to the date of distribution see [330.160]. See also Lee Hiok Tng v Ng Yuk Wah [1988] 3 MLJ 197, [1988] SLR 630,
where the court had to resort to the rules of convenience to close the class of grandsons on the date of distribution.
4 Re Winn, Brook v Whitton [1910] 1 Ch 278 at 286-289 per Parker J . See also Singleton v Gilbert (1784) 1 Cox Eq Cas
68; Viner v Francis (1789) 2 Cox Eq Cas 190; Hill v Chapman (1791) 3 Bro CC 391; Davidson v Dallas (1808) 14 Ves
576. This rule applies to an immediate gift to a class 'or so many of them as shall be living' at a postponed period
(Trelawney v Molesworth (1701) Colles 163), and to a class described as living at the death of a person who died in the
lifetime of the testator (Lee v Pain (1844) 4 Hare 201 at 250; Dimond v Bostock (1875) 10 Ch App 358), or as living at the
date of the will (Leigh v Leigh (1854) 17 Beav 605). As to a gift to a class of 'unmarried' persons see Jubber v Jubber
(1839) 9 Sim 503; Hall v Robertson (1853) 4 De GM & G 781 ('unmarried daughters' ascertained at date of codicil);
Blagrove v Coore (1859) 27 Beav 138 (ascertained at death). Where a fund is left to a class contingently on their
attaining 21, the eldest of the class on attaining 21 takes a vested interest in possession in his share, and a contingent
interest in the shares of the members of the class who are still under 21: Re Williams' Settlement, Williams v Williams
[1911] 1 Ch 441. Where the gift is revoked as regards some members of the class, the effect is to increase the shares of
the other members: Watson v Donaldson [1915] 1 IR 63, CA (Ir) .
5 Ellison v Airey (1748) 1 Ves Sen 111; Bartlett v Hollister (1757) Amb 334; Congreve v Congreve (1781) 1 Bro CC 530;
Devisme v Mello (1782) 1 Bro CC 537; Simmons v Vallance (1793) 4 Bro CC 345; Middleton v Messenger (1799) 5 Ves
136; Walker v Shore (1808) 15 Ves 122 at 125; Tebbs v Carpenter (1816) 1 Madd 290; Marshall v Bousfield (1817) 2
Madd 166; Cooke v Bowen (1840) 4 Y & C Ex 244; Moffatt v Burnie (1853) 18 Beav 211 at 214; Oppenheim v Henry
(1853) 10 Hare 441; Browne v Hammond (1858) John 210 at 212n. See also Hickling v Fair [1899] AC 15 at 35, HL, per
Lord Davey . Apart from this letting in of additional members, the postponement of the gift does not postpone the time of
ascertainment of the class (Lee v Lee (1860) 1 Drew & Sm 85 at 87), and other persons who come into existence after
the period of distribution are excluded (Hill v Chapman (1791) 3 Bro CC 391; Re Roberts, Repington v Roberts-Gawen
(1881) 19 Ch D 520 at 527, CA (Eng) . Members of the class need not survive the period of distribution: Re Wood, Moore
v Bailey (1880) 43 LT 730; Re Walker, Dunkerly v Hewerdine [1917] 1 Ch 38. As to what is the period of distribution see
6 Weld v Bradbury (1715) 2 Vern 705; Shepherd v Ingram (1764) Amb 448; Odell v Crone (1815) 3 Dow 61, HL
('younger children'); Leake v Robinson (1817) 2 Mer 363 at 383; Hutcheson v Jones (1817) 2 Madd 124; Harris v Lloyd
Page 140
(1823) Turn & R 310 at 314; Armitage v Williams (1859) 27 Beav 346.
7 Christopherson v Naylor (1816) 1 Mer 320. Cf Gowling v Thompson (1868) LR 11 Eq 366n, where the general principle
was displaced.
8 Olney v Bates (1855) 3 Drew 319; Browne v Hammond (1858) John 210, deciding that the Wills Act 1837 (UK) s 33 (as
originally enacted) (for the corresponding Malaysian provision see the Wills Act 1959 (Act 346) s 25) had no application;
Re Harvey's Estate, Harvey v Gillow [1893] 1 Ch 567; Re Kinnear, Kinnear v Barnett (1904) 90 LT 537.
9 Wills Act 1959 s 25 (which is equivalent to the Wills Act 1837 (UK) s 33).
10 Devisme v Mello (1782) 1 Bro CC 537; Stanley v Wise (1788) 1 Cox Eq Cas 432; Cooke v Bowen (1840) 4 Y & C Ex
244; Watson v Watson (1840) 11 Sim 73; Swan v Bowden (1842) 11 LJ Ch 155; Locker v Bradley (1842) 5 Beav 593;
Salmon v Green (1849) 11 Beav 453; Pattison v Pattison (1855) 19 Beav 638. The interests of such persons are vested
but subject to being divested in quantity by the birth of further members of the class: see eg Stanley v Wise (1788) 1 Cox
Eq Cas 432; Baldwin v Rogers (1853) 3 De GM & G 649. A provision in the final limitation requiring a sole beneficiary to
survive the tenant for life will not be reflected back into the primary limitation: Re Stephens, Tomalin v Tomalin's Trustee
[1927] 1 Ch 1, CA (Eng) .
11 Parr v Parr (1833) 1 My & K 647 (to 'devolve' on children of life tenant). There may be a gift over or a substitutionary
gift defeating a member's interest: Pope v Whitcombe (1827) 3 Russ 124; Re Miles, Miles v Miles (1889) 61 LT 359. See
also Re Shaw, Williams v Pledger (1912) 56 Sol Jo 380.
12 Re Roberts, Percival v Roberts [1903] 2 Ch 200 at 202 per Joyce J .
[330.160]
Date of distribution
The date of distribution1 may be postponed either by some prior gift, or by the nature of the property
given, or by the conditions attached to the gift. Where the gift is postponed to a life estate, the date of
distribution is usually, but not necessarily, the determination of the life estate2; but the existence of a
mere charge on a fund, for example an annuity charged on it, does not necessarily affect the time at
which the class is ascertained3.
If there is a prior life interest determinable on bankruptcy and there is no postponement of payment until
the death of the tenant for life, the class is fixed at the time of bankruptcy4; but, where the limitation
over to the class after the life interest postpones payment until the death of the life tenant5, or expressly
directs the property to be applicable in the same manner as if the life tenant were dead6, this extends
the class so as to let in those coming into existence before the death.
Where a life interest is determinable on remarriage, and the gift over expressly refers only to the death
of the life tenant, but the court construes the gift over as impliedly intended to take effect on the
remarriage, it may be that the class of children is to be ascertained at the remarriage, although
expressly described as to be ascertained at the death7.
Where the property is reversionary, the date of distribution may be postponed until it falls into
possession8, but there is no postponement in case of a gift of a residue which includes a reversionary
interest with other property9.
1 An expression such as 'date of distribution' or 'period of distribution' is, strictly speaking, a misnomer; it does not denote
the moment when the trustees will distribute the fund, but merely indicates the time when the class of beneficiaries finally
closes: see Re Cockle's Will Trusts, Re Pittaway, Moreland v Draffen Risdon v Public Trustee, [1967] Ch 690 at 704,
[1967] 1 All ER 391 at 394 per Stamp J .
2 Ayton v Ayton (1787) 1 Cox Eq Cas 327; Middleton v Messenger (1799) 5 Ves 136; Barnaby v Tassell (1871) LR 11 Eq
363; Re Cockle's Will Trusts, Re Pittaway, Moreland v Draffen Risdon v Public Trustee, [1967] Ch 690, [1967] 1 All ER
391; Re Deeley's Settlement, Batchelor v Russell [1974] Ch 454, [1973] 3 All ER 1127. Cf Re Knapp's Settlement, Knapp
v Vassall [1895] 1 Ch 91 at 96 per North J . As to a gift to the 'descendants' of two successive life tenants see Re
Roberts, Repington v Roberts-Gawen (1881) 19 Ch D 520 at 527, CA (Eng), per Jessel MR .
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3 Singleton v Gilbert (1784) 1 Cox Eq Cas 68; Hill v Chapman (1791) 3 Bro CC 391; Watson v Watson (1840) 11 Sim 73;
Bortoft v Wadsworth (1864) 12 WR 523; Coventry v Coventry (1865) 2 Drew & Sm 470; Re Whiteford, Inglis v Whiteford
[1903] 1 Ch 889; Re Hiscoe, Hiscoe v Waite (1883) 48 LT 510; Gardner v James (1843) 6 Beav 170, where there could
be no distribution until the death of the surviving annuitant.
4 Re Smith (1862) 2 John & H 594 at 600-601; Re Aylwin's Trusts (1873) LR 16 Eq 585; Re Curzon, Martin v Perry
(1912) 56 Sol Jo 362. See generally [170] BANKRUPTCY (2012 Reissue).
5 Brandon v Aston (1843) 2 Y & C Ch Cas 24 at 30.
6 Re Bedson's Trusts (1885) 28 Ch D 523, CA (Eng) .
7 See Bainbridge v Cream (1852) 16 Beav 25 (followed in Stanford v Stanford (1886) 34 Ch D 362 at 366); Re Tucker,
Bowchier v Gordon (1887) 56 LT 118 at 119 (where Stirling J said that he did not understand Bainbridge v Cream
(above)); Re Dear, Helby v Dear (1889) 61 LT 432 at 434 (where Kay J said that he considered Bainbridge v Cream
(above) to be a reasonable extension of Luxford v Cheeke (1683) 3 Lev 125); Re Crother's Trusts [1915] 1 IR 53; Re
Warner, Watts v Silvey [1918] 1 Ch 368.
8 Walker v Shore (1808) 15 Ves 122 at 125, followed in Harvey v Stracey (1852) 1 Drew 73 at 123.
9 Hagger v Payne (1857) 23 Beav 474; Coventry v Coventry (1865) 2 Drew & Sm 470.
[330.161]
The second rule of convenience
The second rule of convenience deals with the determination of the date of distribution1 where the gift
is of the corpus of property2 and is postponed by reason of the conditions attached to it, as where
payment is to be made on the attainment by the donee of a specified age3, or on his or her marriage4,
or in other cases, it appears, where such conditions are of a nature personal to the donees. The rule is
as follows: where the postponement of enjoyment is due to conditions attached to the gift, the date of
distribution is considered to be reached as soon as the conditions are so far performed that some one
member of the class would be entitled to the enjoyment of his share, if the class were then not
susceptible of increase5, and the class is then closed6. Thus, where there is an immediate gift to a
class, to be paid on the members attaining a specified age, the date of distribution is the date of the
testator's death, if any member of the class has then attained that age7, and, if not, the time of the first
occasion when a member attains that age8.
1 For the meaning of 'date of distribution' see [330.160].
2 As to gifts of real estate see [330.165] and as to gifts of income see [330.166].
3 Where, however, a class takes at birth, a gift over on the members failing to attain a specified age does not postpone
the period of distribution: Davidson v Dallas (1808) 14 Ves 576.
4 Barrington v Tristram (1801) 6 Ves 345; Dawson v Oliver-Massey (1876) 2 Ch D 753 at 756, CA (Eng) .
5 Re Emmet's Estate, Emmet v Emmet (1880) 13 Ch D 484 at 490, CA (Eng) ; Re Bedson's Trusts (1885) 28 Ch D 523
at 526, CA (Eng) ; Re Knapp's Settlement, Knapp v Vassall [1895] 1 Ch 91 at 96.
6 Ie in accordance with the first rule: see [330.159].
7 Picken v Matthews (1878) 10 Ch D 264. See also Gillman v Daunt (1856) 3 K & J 48.
8 Andrews v Partington (1791) 3 Bro CC 401; Prescott v Long (1795) 2 Ves 690; Hoste v Pratt (1798) 3 Ves 730;
Whitbread v Lord St John (1804) 10 Ves 152; Curtis v Curtis (1821) 6 Madd 14; Titcomb v Butler (1830) 3 Sim 417; Balm
v Balm (1830) 3 Sim 492; Blease v Burgh (1840) 2 Beav 221; Robley v Ridings (1847) 11 Jur 813; Re Mervin, Mervin v
Crossman [1891] 3 Ch 197; Re Knapp's Settlement, Knapp v Vassall [1895] 1 Ch 91; Re Chapman's Settlement Trusts
[1978] 1 All ER 1122, [1977] 1 WLR 1163, CA (Eng) ; Re Clifford's Settlement Trusts, Heaton v Westwater [1981] Ch 63,
[1980] 1 All ER 1013; Millbank v Millbank [1982] LS Gaz R 1291. The rule is accordingly termed 'the rule in Andrews v
Partington'. In that case Lord Thurlow LC treated the rule as already established, although, as pointed out in Prescott v
Long (1795) 2 Ves 690 at 692 per Lord Loughborough , it does not appear what are the cases he referred to. The rule,
however, seems to have been applied in Gilmore v Severn (1785) 1 Bro CC 582. A child en ventre sa m re when the
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eldest attains the specified age is included in the class: Trustees, Executors and Agency Co Ltd v Sleeman (1899) 25
VLR 187; and see [330.197]. Where the gift is to children who attain 21, a child who has attained that age at the date of
the will is not excluded (Re Rayner, Couch v Warner (1925) 134 LT 141), although in general words of futurity are
construed strictly (Re Walker, Walker v Walker [1930] 1 Ch 469, CA (Eng) ).
[330.162]
Application of the second rule of convenience
The second rule of convenience1 is adopted to reconcile inconsistent directions in a will that all the
children or other persons comprising the class2 are to take, but that the fund is to be divided at a time
when the class cannot be ascertained3. The rule is not applied unless it is necessary4, and in
substance this will only be where the testator has made his testamentary disposition in such terms that
he must, or may, be taken to have intended a distribution at a moment which may be anterior to the
birth of all the members of the class5. In any event, the rule must give way to language sufficiently clear
to displace it6. Thus, it is not applied where the provisions of the will are inconsistent with any right of
the first child attaining the specified age or satisfying the conditions to payment of his share7, as, for
example where there is an effective direction, extending beyond the time when a child first attains the
specified age or satisfies the conditions, to accumulate income8, or to allow maintenance or
advancement9.
Where the application of the rule would cause the gift to the class, or any other gift in the will connected
with it, to fail as being contrary to law (for example under the rule against perpetuities), and some other
construction, such as that the class is ascertained at the testator's death, is possible under the will by
which the gift takes effect, it appears that the rule is not applied but that the alternative construction is
adopted10.
The rule may be applied notwithstanding that there is a previous life interest11, for instance where no
child is born until after the expiration of the previous interest12, unless the testator shows that the
expiration of that life interest is intended by him to be the date of distribution13.
The rule applies both where the gift and direction as to payment are distinct, so that the gift is not
contingent14, and where the gift is contingent upon attaining the specified age15 or other event, or is
subject to a gift over in any such event16.
An analogous rule operates where the date of distribution is the date when the youngest of the class of
donees attains a certain age; in such a case the gift is immediate and vested and the class is confined
to those in being at the date of the testator's death17 or, if the gift is subject to intervening life interests,
the date of the termination of the last of those life interests18. The rule does not apply if there is no one
in existence at the date of the testator's death who is entitled to a share absolutely vested in interest
and possession19.
1 As to the second rule see [330.161].
2 See [330.163].
3 Re Stephens, Kilby v Betts [1904] 1 Ch 322 at 328 per Buckley J ; Re Wernher's Settlement Trusts, Lloyds Bank Ltd v
Earl Mountbatten [1961] 1 All ER 184 at 187, [1961] 1 WLR 136 at 139 per Buckley J ; Re Tom's Settlement, Rose v
Evans [1987] 1 All ER 1081 at 1085, [1987] 1 WLR 1021 at 1025 per Sir Nicholas Browne-Wilkinson V-C . See also
Defflis v Goldschmidt (1816) 1 Mer 417 at 420 per Grant MR ; Mainwaring v Beevor (1849) 8 Hare 44 at 49 per Wigram
V-C ; but see Mann v Thompson (1854) Kay 628 at 641 (where Wood V-C appears not to have concurred in this view).
The rule has often been criticised. In Andrews v Partington (1791) 3 Bro CC 401 at 404, Lord Thurlow LC said that there
was no greater inconvenience in the case of a devise than in that of a marriage settlement, where nobody doubted that
the same expression meant all the children. See also note 4 below.
4 Re Stephens, Kilby v Betts [1904] 1 Ch 322 at 328 per Buckley J . The rule has been applied to similar gifts to children
in a voluntary settlement (Re Knapp's Settlement, Knapp v Vassall [1895] 1 Ch 91; Re Edmondson's Will Trusts, Baron
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Sandford v Edmondson [1972] 1 All ER 444, [1972] 1 WLR 183, CA (Eng) ). For a discussion of the rule and its origin
see Re Chartres, Farman v Barrett [1927] 1 Ch 466, where it was applied, although the condition of attaining the age of
21 had become definite only by the release of a power of appointment.
5 Re Kebty-Fletcher's Will Trusts, Public Trustee v Swan [1969] 1 Ch 339 at 344, [1967] 3 All ER 1076 at 1079 per
Stamp J ; Re Harker's Will Trusts, Kean v Harker [1969] 3 All ER 1, [1969] 1 WLR 1124 (in both these cases Re Davies,
Davies v Mackintosh [1957] 3 All ER 52, [1957] 1 WLR 922, was doubted).
6 See eg Re Bleckly, Bleckly v Bleckly [1951] Ch 740 at 750, [1951] 1 All ER 1064 at 1070, CA (Eng), per Sir Raymond
Evershed MR ; Re Edmondson's Will Trusts, Baron Sandford v Edmondson [1972] 1 All ER 444, [1972] 1 WLR 183, CA
(Eng) (where the words 'whenever born' in the deed of appointment were held to exclude the rule) applied in Re Tom's
Settlement, Rose v Evans [1987] 1 All ER 1081, [1987] 1 WLR 1021, also referring to Re Chapman's Settlement Trusts,
Jones v Chapman [1978] 1 All ER 1122, [1977] 1 WLR 1163, CA (Eng) , and Re Clifford's Settlement Trusts, Heaton v
Westwater [1981] Ch 63, [1980] 1 All ER 1013. However, the rule is not excluded by the fact that the class is described
as 'all' or 'all and every' the children of a person (Andrews v Partington (1791) 3 Bro CC 401; Prescott v Long (1795) 2
Ves 690), nor do words of futurity such as 'hereafter to be born' necessarily exclude the rule (Re Wernher's Settlement
Trusts, Lloyds Bank Ltd v Earl Mountbatten [1961] 1 All ER 184, [1961] 1 WLR 136 (words related to period between
date of deed and date of distribution).
7 Cf Re Kipping, Kipping v Kipping [1914] 1 Ch 62; Macculloch v Anderson [1904] AC 55 at 61, HL .
8 Watson v Young (1885) 28 Ch D 436; Re Pilkington, Pilkington v Pilkington (1892) 29 LR Ir 370; Re Stephens, Kilby v
Betts [1904] 1 Ch 322; Re Stevens, Trustees, Executors and Agency Co Ltd v Teague [1912] VLR 194 at 201-202; Re
Watt's Will Trusts [1936] 2 All ER 1555. This may not be the case where the direction for accumulation is ineffective
owing to the right of beneficiaries to determine it and take the property free from accumulation: Curtis v Curtis (1821) 6
Madd 14; Coventry v Coventry (1865) 2 Drew & Sm 470.
9 Gardner v James (1843) 6 Beav 170; Bateman v Foster (1844) 1 Coll 118 at 126; Mainwaring v Beevor (1849) 8 Hare
44; Iredell v Iredell (1858) 25 Beav 485; Armitage v Williams (1859) 27 Beav 346; Bateman v Gray (1868) LR 6 Eq 215
(advancement out of 'vested or presumptive shares' relied on) (followed in Re Courtenay, Pearce v Foxwell (1905) 74 LJ
Ch 654, but doubted and not followed in Re Deloitte, Griffiths v Allbeury [1919] 1 Ch 209, CA (Eng) . See also Titcomb v
Butler (1830) 3 Sim 417 (power to allow maintenance insufficient); Mower v Orr (1849) 7 Hare 473 at 477; Hagger v
Payne (1857) 23 Beav 474 at 479; Gimblett v Purton (1871) LR 12 Eq 427 at 430 (power of advancement relating to
presumptive shares only); Re Henderson's Trusts, Schreiber v Baring [1969] 3 All ER 769, [1969] 1 WLR 651, CA (Eng)
(power of advancement relating to vested presumptive shares).
10 Elliott v Elliott (1841) 12 Sim 276, where there was a gift to children of E, as and when attaining 22, with a provision
for interest in the meantime, and Shadwell V-C saw no objection to holding the class to be ascertained at the testator's
death. Elliott v Elliott (above) was explained, as decided on the ground stated in the text, in Mainwaring v Beevor (1849)
8 Hare 44 at 48, and Re Wenmoth's Estate, Wenmoth v Wenmoth (1887) 37 Ch D 266 at 270, and followed in Re
Coppard's Estate, Howlett v Hodson (1887) 35 Ch D 350. See also Re Hobson's Will, Hobson v Sharp [1907] VLR 724 at
730. Elliott v Elliott (above), however, has been much criticised: see Re Pilkington, Pilkington v Pilkington (1892) 29 LR Ir
370 at 376. See also Re Mervin, Mervin v Crossman [1891] 3 Ch 197 at 203-204 (where Elliott v Elliott (above) was
supported on account of the gift of interest; but this is open to question as the gift of interest would only make the gift of
principal a vested and not a contingent gift, and would not alter the date of distribution); Re Barker, Capon v Flick (1905)
92 LT 831; Re Ransome's Will Trusts, Moberley v Ransome [1957] Ch 348, [1957] 1 All ER 690; Re Coppard's Estate,
Howlett v Hodson (1887) 35 Ch D 350 was not intended to go beyond Elliott v Elliott (above) (Re Mervin, Mervin v
Crossman (above)), and in so far as it does so, ought not to be followed (Re Stevens, Clark v Stevens (1896) 40 Sol Jo
296).
11 Clarke v Clarke (1836) 8 Sim 59; Re Emmet's Estate, Emmet v Emmet (1880) 13 Ch D 484, CA (Eng) (in both of
which cases no children had attained the specified age at the expiration of the previous interest).
12 Re Bleckly, Bleckly v Bleckly [1951] Ch 740, [1951] 1 All ER 1064, CA (Eng) . See also Robley v Ridings (1847) 11
Jur 813.
13 Kevern v Williams (1832) 5 Sim 171, followed in Berkeley v Swinburne (1848) 16 Sim 275 at 285-286, and explained
in Re Emmet's Estate, Emmet v Emmet (1880) 13 Ch D 484, CA (Eng) .
14 Andrews v Partington (1791) 3 Bro CC 401, explained in Re Mervin, Mervin v Crossman [1891] 3 Ch 197 at 203 per
Stirling J .
15 Whitbread v Lord St John (1804) 10 Ves 152; Balm v Balm (1830) 3 Sim 492; Locke v Lamb (1867) LR 4 Eq 372;
Gimblett v Purton (1871) LR 12 Eq 427.
16 Barrington v Tristram (1801) 6 Ves 345.
17 Re Manners, Public Trustee v Manners [1955] 3 All ER 83, [1955] 1 WLR 1096.
18 Smith v Jackson (1823) 1 LJOS Ch 231.

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19 Re Ransome's Will Trusts, Moberley v Ransome [1957] Ch 348, [1957] 1 All ER 690 (gift to such of R's children as
should be living on the youngest of R's children attaining 21).
[330.163]
Classes subject to the rules
The rules of convenience1 apply to a gift to a class of children whether the parent is the testator or any
other person, alive or dead2, and, it appears, to any other description of a class3 which, in the context
and circumstances, does not point out some other mode of ascertaining the class4. The rules are
applicable even where the class is described as 'begotten or to be begotten', 'born or to be born' or in
like words5, and no future period is fixed by the will6, in which case the words in question are held to
provide for the birth of children between the making of the will and the testator's death7. The rules are
also applicable where the gift is postponed to a life interest given to a named person who by these rules
takes as a member of the class8.
1 As to the rules of convenience see [330.158] and following.
2 Viner v Francis (1789) 2 Cox Eq Cas 190.
3 Eg grandchildren (Mainwaring v Beevor (1849) 8 Hare 44; Wetherell v Wetherell (1863) 1 De GJ & Sm 134
('grandchildren and great-grandchildren' of A and B); Coventry v Coventry (1865) 2 Drew & Sm 470; Gimblett v Purton
(1871) LR 12 Eq 427), cousins (Baldwin v Rogers (1853) 3 De GM & G 649), or descriptions by other grades of
relationship (Baldwin v Rogers (above) at 656 per Turner LJ ); and generally, it appears, descriptions of any fluctuating
body (Re Laffan and Downes' Contract [1897] 1 IR 469 at 473; Re Smith, Johnson v Bright-Smith [1914] 1 Ch 937).
4 As to gifts to 'next of kin' of any person see [330.167]; and see generally [330.154], [330.155].
5 Sprackling v Ranier (1761) 1 Dick 344; Whitbread v Lord St John (1804) 10 Ves 152; Gilbert v Boorman (1805) 11 Ves
238; Clarke v Clarke (1836) 8 Sim 59; Butler v Lowe (1839) 10 Sim 317; Dias v De Livera (1879) 5 App Cas 123 at 134,
PC .
6 Scott v Earl of Scarborough (1838) 1 Beav 154 at 168, where, however, the gift was to children born 'during the lifetime
of their respective parents' so that children born after the date of distribution were let in; Re Wernher's Settlement Trusts,
Lloyds Bank Ltd v Earl Mountbatten [1961] 1 All ER 184, [1961] 1 WLR 136.
7 Storrs v Benbow (1833) 2 My & K 46 at 48; Dias v De Livera (1879) 5 App Cas 123 at 135, PC .
8 Elmsley v Young (1835) 2 My & K 780; King v Tootel (1858) 25 Beav 23; Reay v Rawlinson (1860) 29 Beav 88; Almack
v Horn (1863) 1 Hem & M 630. See also the cases as to 'next of kin' cited in [330.167] note 2.
[330.164]
Gifts subject to the rules
The rules of convenience1 apply to gifts of the corpus of personal estate2, or of a mixed fund of real and
personal estate3. In the case of gifts of income only of such property, or of sums payable at intervals4,
the class taking any particular payment is normally to be ascertained so as to let in all members coming
into existence before the time for that payment5, and the class, it appears, is not to be closed finally for
all subsequent payments at the time when the right to receive income first accrues to any member of
the class, except in cases where other considerations require it6.
1 As to the rules of convenience see [330.158] and following.
2 Gifts of real estate, or a mixed fund of real and personal estate, held upon trust for conversion and investment are
subject to the rules: Hoste v Pratt (1798) 3 Ves 730; Re Mervin, Mervin v Crossman [1891] 3 Ch 197.
Page 145
3 See Andrews v Partington (1791) 3 Bro CC 401 (residue); Dawson v Oliver-Massey (1876) 2 Ch D 753, CA (Eng) ; Re
Emmet's Estate, Emmet v Emmet (1880) 13 Ch D 484, CA (Eng) .
4 Re Latham, Seymour v Bolton [1901] WN 248 (annuity to children attaining 21; two who had attained 21 alone entitled
to payment).
5 Re Wenmoth's Estate, Wenmoth v Wenmoth (1887) 37 Ch D 266, where Chitty J held that the rule in Andrews v
Partington (1791) 3 Bro CC 401 (see [330.161]) did not apply to gifts of income. The decision in Re Wenmoth's Estate,
Wenmoth v Wenmoth (above) was criticised and explained by Buckley J in Re Stephens, Kilby v Betts [1904] 1 Ch 322.
These criticisms, however, have been dissented from as unnecessary: see Re Carter, Walker v Litchfield (1911) 30
NZLR 707 at 723, CA (NZ) , and Re Wenmoth's Estate, Wenmoth v Wenmoth (above) was followed in Re Ward's Will
Trusts, Ward v Ward [1965] Ch 856, [1964] 3 All ER 442.
6 Re Stephens, Kilby v Betts [1904] 1 Ch 322. In Re Powell, Crosland v Holliday [1898] 1 Ch 227 (gift of real estate), the
class was thus closed, but if the ordinary rule had been applied, a subsequent gift would have been void under the rule
against perpetuities. See the comments made in this case on Re Wenmoth's Estate, Wenmoth v Wenmoth (1887) 37 Ch
D 266. In so far as Re Powell, Crosland v Holliday (above) purports to lay down a general rule of construction, it is
dissented from in Re Carter, Walker v Litchfield (1911) 30 NZLR 707, CA (NZ) ; and Re Ward's Will Trusts, Ward v Ward
[1965] Ch 856, [1964] 3 All ER 442 (where Re Wenmoth's Estate, Wenmoth v Wenmoth (above) was followed). See also
Mogg v Mogg (1815) 1 Mer 654, referred to as an authority as to the difference between gifts of corpus and of income in
Re Wenmoth's Estate, Wenmoth v Wenmoth (above).
[330.165]
Gifts of real estate alone
If a gift of real estate alone to a class is construed as being immediate upon the testator's death, this is
the time when the class is ascertained if any members of the class have then come into being1. If no
members of the class have then come into being, the gift must take effect as an executory devise, and
all members, whenever born, will be let in2. A devise, not otherwise postponed, to 'all and every' the
children of a person is construed as immediate and the class is ascertained at the testator's death3.
In a gift not otherwise postponed, a description of a class of children as 'born and to be born', or
'begotten and to be begotten', may cause the gift to take effect as an executory devise, and accordingly
all the children, whether in existence at the testator's death or otherwise, may take under the gift4.
In an executory devise to a class on the death of any person or on any other postponed event which
does not import contingency in the class, the donees are prima facie ascertained so as to let in all who
come into existence and satisfy the description before that event5. In a gift to a class not postponed
otherwise than by the fact that the description may refer to persons yet to come into existence, and that
no member of the class has come into existence at the testator's death, all the members of the class
coming into existence at any time are let in6.
1 See the English cases on 'real estate': Singleton v Gilbert (1784) 1 Cox Eq Cas 68; Doe d Thwaites v Over (1808) 1
Taunt 263; Crone v Odell (1811) 1 Ball & B 449 at 458 (affd (1815) 3 Dow 61, HL ); Re Johnson, Danily v Johnson
(1893) 68 LT 20 (acceleration of ascertainment by revocation of prior interest). The rule was applied to gifts of income in
Re Powell, Crosland v Holliday [1898] 1 Ch 227 at 231: see [330.164] note 6.
2 Weld v Bradbury (1715) 2 Vern 705.
3 Scott v Harwood (1821) 5 Madd 332.
4 Mogg v Mogg (1815) 1 Mer 654 at 690; Gooch v Gooch (1853) 3 De GM & G 366 (where, however, the devises were
devises of rents and profits only). It appears that the rule referring such words to the interval between the date of the will
and the testator's death, which is applicable to personal estate (see [330.163] text and note 7), does not apply to gifts of
income of real estate: see Dias v De Livera (1879) 5 App Cas 123 at 132, PC . See also Cook v Cook (1706) 2 Vern 545
(where, it appears, 'begotten' was construed to include 'to be begotten'); Eddowes v Eddowes (1862) 30 Beav 603; but
see Woodhouse v Herrick (1855) 1 K & J 352 at 358, 360.
5 Crone v Odell (1811) 1 Ball & B 449 at 459; Browne v Hammond (1858) John 210 at 212n; Holland v Wood (1870) LR
11 Eq 91 at 96; Re Canney's Trusts, Mayers v Strover (1910) 101 LT 905.
Page 146
6 Shepherd v Ingram (1764) Amb 448.
[330.166]
Gift of intermediate income
Where a gift carrying intermediate income is made to a contingent class, then if members of the class
attain a vested interest on coming into existence, whether subject or not to being diminished in any
event, the members for the time being in existence share the income1. If, however, members attain a
vested interest on attaining a certain age, or on satisfying some other description or condition, a
member of the class attaining a vested interest takes only the income of the share to which he would be
entitled if the other members of the class for the time being in existence2 had attained vested interests3.
However, if a gift not carrying intermediate income is made to such a class, the members of the class
whose interests are transmissible for the time being take the whole income4 unless the testator
sufficiently indicates that the income is to be divisible equally between all the members of the class, as
by including a power of maintenance5.
1 Shepherd v Ingram (1764) Amb 448. In Re Ransome's Will Trusts, Moberley v Ransome [1957] Ch 348, [1957] 1 All
ER 690, a beneficiary with a contingent interest only was not entitled to income after the permitted period of
accumulation by virtue of the Trustee Act 1925 (UK) s 31(1)(ii) (cf the Trustee Act 1949 (Act 208) s 36(1)(b)) because a
contrary intention within the Trustee Act 1925 (UK) s 69(2) (cf the Trustee Act 1949 s 2(2)) was disclosed by the
existence of an express direction to accumulate. Where the law intervenes to prevent further accumulations, the income
will in general pass to residue or on an intestacy, as the case may be: Re Ransome's Will Trusts, Moberley v Ransome
(above).
2 On the birth of another child and the consequent probable enlargement of the class, the child is not entitled to
participate in income which has arisen prior to his birth: Mills v Norris (1800) 5 Ves 335; Scott v Earl of Scarborough
(1838) 1 Beav 154.
3 Re Holford, Holford v Holford [1894] 3 Ch 30, CA (Eng) ; Re Jeffery, Arnold v Burt [1895] 2 Ch 577; Re Faux, Taylor v
Faux, as reported in [1915] WN 135; Re Maber, Ward v Maber [1928] Ch 88; Re King, Public Trustee v Aldridge [1928]
Ch 330.
4 Re Averill, Salsbury v Buckle [1898] 1 Ch 523; Re Walmsley's Settled Estates (1911) 105 LT 332. See also Stone v
Harrison (1846) 2 Coll 715 (sum of consols).
5 Re Woodiwiss' Will Trusts, Robotham v Burn (1959) 109 L Jo 154. In Re Stevens, Stevens v Stevens [1915] 1 Ch 429,
there was, after the death of the tenant for life, a trust of 'as well the income as the corpus' for children attaining 21 or
marrying; each child was entitled to a share of rents from the death of the tenant for life as and when he became entitled
to a corresponding share of the corpus, with maintenance in the meantime.
[330.167]
Gifts to next of kin
Whatever may be the time of distribution, where there is a gift to a testator's next of kin, without more,
the class prima facie has to be ascertained1 as at the testator's death2, and, where there is a gift to the
next of kin of any other person, the class prima facie has to be ascertained at that person's death, if he
survived the testator3, and, if he did not, the class consists of those of the next of kin living at the
testator's death4. In a gift to a class of next of kin of the testator (or his nearest relatives or a similar
class) living at a future date of distribution, the entire class is ascertained as at the testator's death, but
only those of the class who survive to the date of distribution may take5.
Where the gift was to the testator's next of kin entitled by virtue of the former Statutes of Distribution6,
even though they were to be so entitled at some future time7, the class was prima facie ascertained as
Page 147
at the testator's death8. However, the context may require them to be ascertained as if the testator had
died at some other date9. The same rules appear to apply to the ascertainment of persons entitled
under the provisions as to succession on intestacy10 now in force11.
1 As to the construction of gifts to next of kin see [330.185].
2 Wharton v Barker (1858) 4 K & J 483 at 488 per Wood V-C . See also Seifferth v Badham (1846) 9 Beav 370; Say v
Creed (1847) 5 Hare 580 at 587; Ware v Rowland (1848) 2 Ph 635; Bird v Luckie (1850) 8 Hare 301, where the sole next
of kin took a prior life estate; Gorbell v Davison Gorbell v Forrest, (1854) 18 Beav 556 (two of class had prior life
interests); Moss v Dunlop (1859) John 490; Lee v Lee (1860) 1 Drew & Sm 85 (one had prior interest); Harrison v
Harrison (1860) 28 Beav 21; Re Ford, Patten v Sparks (1895) 72 LT 5, CA (Eng) ; Re Maher, Maher v Toppin [1909] 1 IR
70, CA (Ir) . See further Re Clanchy's Will Trusts, Lynch v Edwards [1970] 2 All ER 489, CA (Eng) , where the terms of
the will required that the class be ascertained at a later date, when the nearest in blood to the testator then living took;
Re Shield, Bache v Shield [1974] Ch 373, [1974] 2 All ER 274, a composite class of the testator's and his wife's relations
was held to be ascertained at the widow's death.
3 Philps v Evans (1850) 4 De G & Sm 188; Gundry v Pinniger (1852) 1 De GM & G 502. See also Jacobs v Jacobs
(1853) 16 Beav 557 (criticised in Re Kilvert, Midland Bank Executor and Trustee Co Ltd v Kilvert [1957] Ch 388, [1957] 2
All ER 196).
4 Philps v Evans (1850) 4 De G & Sm 188; Wharton v Barker (1858) 4 K & J 483 at 502; Re Philps' Will (1868) LR 7 Eq
151 ('heirs' construed as next of kin). For a contrary intention see Re Rees, Williams v Davies (1890) 44 Ch D 484.
5 Spink v Lewis (1791) 3 Bro CC 355; Re Nash, Prall v Bevan (1894) 71 LT 5, CA (Eng) (followed in Re Winn, Brook v
Whitton [1910] 1 Ch 278 ('next of kin living at the time of the trusts failing')).
6 As to the former Statutes of Distribution see [330.185].
7 See Re Winn, Brook v Whitton [1910] 1 Ch 278 at 289, where Parker J explained that in such cases the ordinary rule
which would have ascertained the class at the time referred to is rebutted, because of the necessity for every person who
claims under the gift to prove his title by virtue of the statute.
8 Doe d Garner v Lawson (1803) 3 East 278; Markham v Ivatt (1855) 20 Beav 579; Bullock v Downes (1860) 9 HL Cas 1;
Mortimore v Mortimore (1879) 4 App Cas 448, HL ; Re Wilson, Wilson v Batchelor [1907] 1 Ch 450; affd [1907] 2 Ch 572,
CA (Eng) .
9 Wharton v Barker (1858) 4 K & J 483; Clowes v Hilliard (1876) 4 Ch D 413; Sturge and Great Western Rly Co (1881)
19 Ch D 444; Re McFee, McFee v Toner (1910) 103 LT 210; Re Helsby, Neate v Bozie (1914) 84 LJ Ch 682; Re Mellish,
Day v Withers [1916] 1 Ch 562; Hutchinson v National Refuges for Homeless and Destitute Children [1920] AC 795, HL ;
Re Krawitz's Will Trusts, Krawitz v Crawford [1959] 3 All ER 793 at 797, [1959] 1 WLR 1192 at 1196.
10 See the Distribution Act 1958 (Act 300) ss 6, 7(1), (2).
11 See Re Bridgen, Chaytor v Edwin [1938] Ch 205 at 209, [1937] 4 All ER 342 at 344; Re Krawitz's Will Trusts, Krawitz
v Crawford [1959] 3 All ER 793, [1959] 1 WLR 1192; Re Mitchell, Hatton v Jones [1954] Ch 525, [1954] 2 All ER 246.
Page 148
Take/ (i) Time of Ascertainment of Donees/ (C) Survivorship
(C) Survivorship
[330.168]
Usual meanings of 'survive'
The word 'survive' and its derivatives ordinarily refer to the longest in duration of lives running
concurrently1; they may, however, refer not to concurrent lives but to the fact of living to and after a
named event or death2. There is no rule of construction as to the period to which survivorship refers
apart from a context3. The question must in every case be answered by applying ordinary principles of
construction to the particular language used and having regard to any relevant surrounding
circumstances4. The language used must be construed in its natural sense unless the context shows
that this would defeat the testator's intention5, and the mere fact that, so construed, the will might in
certain possible, or even probable, circumstances produce results which seem fanciful or even harsh is
not a sufficient ground for adopting another interpretation6. Although this fact may raise doubts whether
the construction fulfils the testator's intention, doubts are not enough; it must be possible to discover
from the language used what the intention was, that is, that the testator intended to use 'survive' in
some secondary sense7.
1 Re Delany, Delany v Delany (1895) 39 Sol Jo 468. See also Gee v Liddell (1866) LR 2 Eq 341 at 344 per Lord Romilly
MR ('the person to survive must be living at the death of the person who is to be survived'); Re Heath, Jackson v
Norman (1904) 48 Sol Jo 416; Re Bourke's Will Trusts, Barclays Bank Trust Co Ltd v Canada Permanent Trust Co
[1980] 1 All ER 219, [1980] 1 WLR 539, where 'surviving issue' meant surviving children, rather than surviving issue of all
degrees.
2 Re Clark's Estate (1864) 3 De GJ & Sm 111; Mellor v Daintree (1886) 33 Ch D 198 at 210; Re Sing, Sing v Mills [1914]
WN 90. For a discussion of the uses of the word 'survive' and of these cases see Knight v Knight (1912) 14 CLR 86 and
Re Sadler, Furniss v Cooper (1915) 60 Sol Jo 89 ('with benefit of survivorship in the same family'). 'Surviving' means,
prima facie 'living both on and after a particular point of time': see Elliot v Lord Joicey [1935] AC 209 at 218, HL ; Re
Hodgson, Hodgson v Gillett [1952] 1 All ER 769; Re Allsop, Cardinal v Warr [1968] Ch 39 at 45-46, 48, 51, [1967] 2 All
ER 1056 at 1057-1059, 1061, CA (Eng), per curiam . Where two events were specified, 'surviving' was held to mean
living at the happening of the last of those two: Re Castle, Public Trustee v Floud [1949] Ch 46, [1948] 2 All ER 927; cf
Re Gargan, Governor & Co of Bank of Ireland v A-G [1962] IR 264, where it was held that, in order to survive two events,
the beneficiary had to be alive at the occurrence of the first.
3 Re Benn, Benn v Benn (1885) 29 Ch D 839 at 844, CA (Eng), per Cotton LJ ; Inderwick v Tatchell [1903] AC 120 at
123, HL ; Re James's Will Trusts, Peard v James [1962] Ch 226 at 245, [1960] 3 All ER 744 at 754.
4 Re James's Will Trusts, Peard v James [1962] Ch 226 at 245, [1960] 3 All ER 744 at 754. See Re Allsop, Cardinal v
Warr [1968] Ch 39, [1967] 2 All ER 1056, CA (Eng) , where 'as shall survive me and attain the age of 21 years' was read
on the construction of the whole will as 'as shall (in the case of those born in my lifetime) survive me and in any case
attain the age of 21 years'. Cf Re Riley's Will Trusts, Barclays Bank Ltd v Riley (1964) 108 Sol Jo 174, CA (Eng) , where
'survivors of my said children and their issue' was read on the construction of the whole will not to impose survivorship so
far as the issue were concerned.
5 Gilmour v MacPhillamy [1930] AC 712, PC ; Re James's Will Trusts, Peard v James [1962] Ch 226 at 245, [1960] 3 All
ER 744 at 754.
6 Wake v Varah (1876) 2 Ch D 348, CA (Eng) ; Auger v Beaudry [1920] AC 1010, PC ; Gilmour v MacPhillamy [1930] AC
712, PC ; Re James's Will Trusts, Peard v James [1962] Ch 226 at 245, [1960] 3 All ER 744 at 754.
7 See note 6 above.

Page 149
[330.169]
Use of words such as 'survivors' otherwise than in a strict sense
'Survivor' and similar words may be used in other than the strict sense. Thus, in a set of dispositions in
favour of several persons and their children or issue, the words may be used in a sense in which the
element of survivorship involves not a survivorship between the named persons, but the subsistence of
a line of children or issue, or of vested estates and interests1. Alternatively, they may be used as
meaning 'others'2, but, where it is proper to adopt a secondary meaning, a meaning which imports
some kind or element of survivorship (for example survival by issue) is to be preferred to construing
'survivors' as equivalent to 'others'3. Such words may receive one of the constructions previously
mentioned4 where the context requires it, but not otherwise5. Where the gift is to several persons
equally for their respective lives and after the death of any to his children, but, if any die without
children, to the survivors for life6, with remainder to their children, without more7, then as a rule only
children of survivors in the ordinary sense can take under the gift over8.
1 Re Friend's Settlement, Cole v Allcot [1906] 1 Ch 47 at 54 (case of a deed).
2 Wilmot v Wilmot (1802) 8 Ves 10; Leake v Robinson (1817) 2 Mer 363 at 394; Smith v Osborne (1857) 6 HL Cas 375
at 393; O'Brien v O'Brien [1896] 2 IR 459, CA (Ir) ; Powell v Hellicar [1919] 1 Ch 138.
3 Waite v Littlewood (1872) 8 Ch App 70; Re James's Will Trusts, Peard v James [1962] Ch 226 at 245, [1960] 3 All ER
744 at 755.
4 See the text to notes 1, 2 above.
5 Davidson v Dallas (1808) 14 Ves 576 at 578, where the construction 'others' is described as a forced construction;
Winterton v Crawfurd (1830) 1 Russ & M 407. See also Cromek v Lumb (1839) 3 Y & C Ex 565; Leeming v Sherratt
(1842) 2 Hare 14 at 24; Stead v Platt (1853) 18 Beav 50; Mann v Thompson (1854) Kay 628 at 644; Greenwood v Percy
(1859) 26 Beav 572; Nevill v Boddam (1860) 28 Beav 554 at 559; De Garagnol v Liardet (1863) 32 Beav 608.
6 If in such a case the survivors take absolutely, there may be ground for reading 'survivor', in respect of the last, as
'longest liver', as in Maden v Taylor (1876) 45 LJ Ch 569, followed in Davidson v Kimpton (1881) 18 Ch D 213; Re
Roper's Estate, Morrell v Gissing (1889) 41 Ch D 409. Cf King v Frost (1890) 15 App Cas 548 at 553; Re Mortimer,
Griffiths v Mortimer (1885) 54 LJ Ch 414; Askew v Askew (1888) 57 LJ Ch 629.
7 Eg a further gift over: see note 8 below.
8 Re Usticke (1866) 35 Beav 338; Re Horner's Estate, Pomfret v Graham (1881) 19 Ch D 186; Re Dunlevy's Trusts
(1882) 9 LR Ir 349, CA (Ir) ; Re Rubbins, Gill v Worrall (1898) 79 LT 313, CA (Eng) ; Olphert v Olphert [1903] 1 IR 325;
Garland v Smyth [1904] 1 IR 35, CA (Ir) . See also Re Bowman, Re Lay, Whytehead v Boulton (1889) 41 Ch D 525 at
531 (the first rule in this case). A contrary intention in favour of issue may be shown by a substitutional gift, but 'survivors'
may nevertheless have its ordinary meaning (Willetts v Willetts (1848) 7 Hare 38; Blundell v Chapman (1864) 33 Beav
648; Re Hobson, Barwick v Holt [1912] 1 Ch 626 at 633); and without construing 'survivors' as 'others', 'their issue' may
mean the issue not of surviving children only, but of all the children (Re Corbett's Trusts (1860) John 591 at 598 per
Wood V-C ; Re Bowman, Re Lay, Whytehead v Boulton (1889) (above) at 529). In Hodge v Foot (1865) 34 Beav 349
'survivors' was held to mean 'others'.
[330.170]
Ascertainment of survivors at date of distribution
Where there is a gift to a number of persons and the survivors1 and survivor of them, or with benefit of
survivorship, or in like words2, or where there is a postponed gift to persons 'surviving', then, in default
of any expressed intention of the testator3, the survivorship is prima facie referred to the period of
distribution4. Thus, the time in question, where the gift is immediate, is the testator's death5, and, where
the gift is postponed to a life estate, is the death of the tenant for life6 or the death of the testator,
whichever last happens7; and this applies whether the gift is of real or of personal estate8.
Page 150
1 A gift to 'survivors' may vest in a sole survivor: Hearn v Baker (1856) 2 K & J 383.
2 Wiley v Chanteperdrix [1894] 1 IR 209 at 215. It is assumed that the words are words of gift by way of purchase and
not merely words of limitation.
3 Blackmore v Snee (1857) 1 De G & J 455 at 460. For examples of a context clearly showing such an intention see
Wordsworth v Wood (1847) 1 HL Cas 129 at 156; and for an example of a context excluding the rule in the text see
Rogers v Towsey (1845) 9 Jur 575.
4 Cripps v Wolcott (1819) 4 Madd 11 at 15; Vorley v Richardson (1856) 8 De GM & G 126 at 129 (when youngest child
attained 21); Wiley v Chanteperdrix [1894] 1 IR 209 at 215. In certain early cases survivorship was held, even in a
postponed gift, to refer to the testator's death (see Rose d Vere v Hill (1766) 3 Burr 1881; Wilson v Bayly (1760) 3 Bro
Parl Cas 195, HL ; Doe d Long v Prigg (1828) 8 B & C 231), but the rule in Cripps v Wolcott (above) has been
consistently followed in England. For the meaning of 'period of distribution' see [330.160] note 1.
5 Stringer v Phillips (1730) 1 Eq Cas Abr 292; Bass v Russell (1829) Taml 18; Ashford v Haines (1851) 21 LJ Ch 496;
Neathway v Reed (1853) 3 De GM & G 18; Howard v Howard (1856) 21 Beav 550; Re Phillips (1921) 151 LT Jo 162.
The will may show that 'survivor' means survivor inter se, so that, if of two persons both die in the lifetime of the tenant
for life, the executors of the survivor will take: Re Wood, Hardy v Hull (1923) 130 LT 408. See also Young's Trustees v
Young 1927 SC (HL) 6.
6 Cripps v Wolcott (1819) 4 Madd 11; Re Benn, Benn v Benn (1885) 29 Ch D 839 at 844, CA (Eng), per Cotton LJ ; Re
Poultney, Poultney v Poultney [1912] 2 Ch 541 at 544, CA (Eng) (stating the rule in Cripps v Wolcott (above) as 'where
there is a gift to A for life, with remainder to A, B, C and to the survivors or survivor, the survivorship is ascertained at the
death of the tenant for life'); Re Douglas's Will Trusts, Lloyds Bank Ltd v Nelson [1959] 3 All ER 785, [1959] 1 WLR 1212,
CA (Eng) . See also Jenour v Jenour (1805) 10 Ves 562; Blewitt v Roberts (1841) Cr & Ph 274 at 283; Taylor v Beverley
(1844) 1 Coll 108; Whitton v Field (1846) 9 Beav 368; Davies v Thorns (1849) 3 De G & Sm 347; M'Donald v Bryce
(1853) 16 Beav 581; Neathway v Reed (1853) 3 De GM & G 18; Re Pritchard's Trusts (1855) 3 Drew 163; Hearn v Baker
(1856) 2 K & J 383; Re Crawhall's Trust (1856) 8 De GM & G 480; Hesketh v Magennis (1859) 27 Beav 395; Young v
Davies (1863) 2 Drew & Sm 167 at 170; Naylor v Robson (1865) 34 Beav 571; Re Belfast Town Council, ex p Sayers
(1884) 13 LR Ir 169 at 172.
7 Spurrell v Spurrell (1853) 11 Hare 54.
8 Re Gregson's Trust Estate (1864) 2 De G J & Sm 428; Buckle v Fawcett (1845) 4 Hare 536 at 542 (mixed fund). See
also Howard v Collins (1868) LR 5 Eq 349. For doubts as to the application of the rule to real estate see Taaffe v
Conmee (1862) 10 HL Cas 64 at 77.
[330.171]
Survivorship on contingent event
Where there is a gift to several persons, followed by an express contingent gift over on any event to the
survivors or survivor, the survivorship may be independent of both the contingent event and the period
of distribution1, or, on the other hand, may refer either to the period of distribution2 or to the contingent
event3, according to the context in the particular case.
1 Ie it may refer only to survivorship between the named persons: White v Baker (1860) 2 De G F & J 55; Re Wood,
Hardy v Hull (1923) 130 LT 408. The court leans against a construction involving a gift of the whole to the last survivor,
particularly where there are words indicating a tenancy in common, and it attempts to discover a time to which the
survivorship is to be referred: Cambridge v Rous (1858) 25 Beav 409 at 415. For the meaning of 'period of distribution'
see [330.160] note 1.
2 Cambridge v Rous (1858) 25 Beav 409; Re Pickworth, Snaith v Parkinson [1899] 1 Ch 602, CA (Eng) .
3 Crowder v Stone (1829) 3 Russ 217.

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Take/ (i) Time of Ascertainment of Donees/ (D) Alternative Gifts
(D) Alternative Gifts
[330.172]
Gifts expressed in the alternative
Two or more gifts may be made to take effect alternatively, for example in certain mutually exclusive
events1; thus, a gift to A or B, where A and B are donees described or named and mutually exclusive2,
is an alternative gift. In such a gift there is generally a contingency implied, even if not expressed, on
the happening of which the gift is to take effect in favour of the second-named donee, and the
circumstances of the gift must be ascertained before the contingency can be determined3. Usually, it
refers to the death of the first-named donee before a particular event, for example the testator's death
or some other date of distribution, and it is inferred that the testator's intention is that the first donee is
to take if then alive, but that the second donee is to take if the first does not survive the particular
event4.
If such a contingency is not expressed or implied, then if A and B are mutually exclusive the gift5 is void
for uncertainty6 unless either there is a general charitable intent, in which case the court is able to
determine the mode in which the gift is to take effect.
1 It has first to be determined in all cases whether the second gift (eg where it is to take effect on death of the first donee
without issue, or leaving issue) takes effect by way of succession to the first gift, or is an alternative to the first gift: Ware
v Watson (1855) 7 De GM & G 248 at 258. See also Hatch v Hatch (1855) 20 Beav 105; Parsons v Coke (1858) 4 Drew
296. A gift 'to A and/or B' constitutes a joint tenancy: Re Lewis, Goronway v Richards [1942] Ch 424, [1942] 2 All ER
364.
2 There may be cases, such as gifts to 'heirs or next of kin', where the terms are used as applying to one class and not
as alternative: Lowndes v Stone (1799) 4 Ves 649; Re Thompson's Trusts (1878) 9 Ch D 607. If B is the general term for
a large class (namely 'descendants') of which A is an enumeration of members, or a sub-class (namely 'children'), and
the gift is to 'each of A or B', the gift is not void but includes all B, and 'or' need not be altered: see Clay v Pennington
(1835) 7 Sim 370; Solly v Solly (1858) 5 Jur NS 36.
3 See [330.074] note 1.
4 Re Sibley's Trusts (1877) 5 Ch D 494 at 499. See also Turner v Moor (1801) 6 Ves 557 at 559; Salisbury v Petty
(1843) 3 Hare 86 at 93; Carey v Carey (1857) 6 I Ch R 255; Walmsley v Foxhall (1863) 1 De G & Sm 605; Re Pearce,
Eastwood v Pearce (1912) 56 Sol Jo 686, CA (Eng) . Cf Bowman v Bowman [1899] AC 518 at 523, HL , where 'or' was
held to mean 'whom failing', and Lord Watson said that the point to be determined was at what period of time the testator
must be held to have intended that the right of the donee should come to an end if he was not then alive, and that the
right of the conditional donee should arise. Thus, a gift to A with a substitutional gift to his children or to his issue, takes
effect in favour of A if he is living at the period of distribution (Montagu v Nucella (1826) 1 Russ 165; Jones v Torin (1833)
6 Sim 255; Whitcher v Penley (1846) 9 Beav 477; Chipchase v Simpson (1849) 16 Sim 485; Penley v Penley (1850) 12
Beav 547; Sparks v Restal (1857) 24 Beav 218; Margitson v Hall (1864) 10 Jur NS 89; Holland v Wood (1870) LR 11 Eq
91), and in favour of his children or issue if he is not then living (Davenport v Hanbury (1796) 3 Ves 257; Girdlestone v
Doe (1828) 2 Sim 225 (A or his heirs); Salisbury v Petty (1843) 3 Hare 86; Re Porter's Trust (1857) 4 K & J 188). The
contingency of the death of one of the alternate donees in the lifetime of the tenant for life may sometimes be implied:
see Re Fisher, Robinson v Eardley [1915] 1 Ch 302. A gift may be given for alternative purposes and be capable of
taking effect for the second purpose without the first being carried out: Re Sahal's Will Trusts, Alliance Assurance Co Ltd
v A-G [1958] 3 All ER 428, [1958] 1 WLR 1243.
5 Ie if read without alteration, but sometimes words are capable of alteration. Thus, 'or' may be changed to 'and' if
necessary, and in accordance with the whole will (Richardson v Spraag (1718) 1 P Wms 434; Eccard v Brooke (1790) 2
Cox Eq Cas 213; Horridge v Ferguson (1822) Jac 583; Parkin v Knight (1846) 15 Sim 83; Re Turney, Turney v Turney
[1899] 2 Ch 739 at 745, CA (Eng) ; Re Hayden, Pask v Perry [1931] 2 Ch 333); but this is not done if the gift can be read
as a substitutional gift on some contingency (Speakman v Speakman (1850) 8 Hare 180). See note 4 above.
Page 152
6 Richardson v Spraag (1718) 1 P Wms 434 per Jekyll MR ; Longmore v Broom (1802) 7 Ves 124 at 128 per Grant MR ;
Flint v Warren (1847) 15 Sim 626 at 629. As to uncertainty generally see [330.122]-[330.126].
[330.173]
Original and substitutional gifts
An alternative gift is either original or substitutional1. The gift is original where there is a direct gift to the
second donee, even though it is only to take effect if the contingency happens2; it is substitutional
where the second donee takes no direct gift but merely, on the happening of the contingency, the
benefit which has been already given to the first donee. Thus, the gift is substitutional where the
interest which the alternative donee is to take is by a prior clause in the will given to the first donee, so
that the second donee merely stands in the place of the first if the first donee is not capable of taking on
the particular contingency in contemplation. A gift is original where the interest which the second donee
is to take is not by a prior clause given to the first donee3. Thus, if the gift is to a person for life and after
his death to the testator's nephews and nieces then living and the issue of such of them as may be then
dead, such issue to take their parent's share only, there is no gift to a nephew who predeceases the life
tenant leaving issue, and his issue are the objects of an original gift. However, where the gift after the
death of the life tenant is to all the testator's nephews and nieces but, if any die before the life tenant
leaving issue, then to the issue of that one, the issue taking the parent's share, a nephew who
predeceases the life tenant is at first included in the class, and, on his falling out of it, his issue are
substituted for him; that is, the gift to the issue is substitutional4.
1 Whether the gift is original or substitutional is a matter of construction. Thus, a gift preceded by 'and' is not necessarily
original: Hurry v Hurry (1870) LR 10 Eq 346 at 348 per James V-C , commenting on Re Merricks' Trusts (1866) LR 1 Eq
551 at 558. See also Maynard v Wright (1858) 26 Beav 285. In Re Coulden, Coulden v Coulden [1908] 1 Ch 320 at 325
there was a direction to sell the real and personal estate on the death of either of two sons who were appointed
executors, and to divide the proceeds equally 'amongst my then surviving children and their respective issue'. It was held
that 'their issue' were not words of limitation, and that the issue of the surviving children could not compete with their
parents and took nothing, while 'issue' was extended to children of deceased children, who took the share which their
deceased parent would have taken. Ordinarily, however, in a gift to a person and his issue, the issue take in competition
with the named donee: Re Hammond, Parry v Hammond [1924] 2 Ch 276.
2 Eg as in Surridge v Clarkson (1866) 14 WR 979.
3 Lanphier v Buck (1865) 2 Drew & Sm 484 at 494.
4 Lanphier v Buck (1865) 2 Drew & Sm 484; Martin v Holgate (1866) LR 1 HL 175; Re Woolley, Wormald v Woolley
[1903] 2 Ch 206 at 209. In the case of a devise to a person and his heirs (Brett v Rigden (1568) 1 Plowd 340; Warner v
White (1782) 3 Bro Parl Cas 435, HL ), or to a person and the heirs of his body (Hartopp's Case (1591) Cro Eliz 243;
Hutton v Simpson (1716) 2 Vern 722; Denn d Radclyffe v Bagshaw (1796) 6 Term Rep 512; Doe d Turner v Kett (1792)
4 Term Rep 601), or of a bequest to a person, his executors or administrators (Elliott v Davenport (1705) 1 P Wms 83),
the additional words are words of limitation. In an immediate gift to a person or his personal representatives, the personal
representatives take by substitution if the legatee dies in the lifetime of the testator (Gittings v M'Dermott (1834) 2 My & K
69), but, where the gift is postponed, expressions such as 'personal representatives' are treated as simply another way of
giving the legatee a vested interest on the testator's death, and there is no substitutional gift; and, if the legatee dies in
the lifetime of the testator, the personal representatives do not take (Re Porter's Trust (1857) 4 K & J 188 at 193-198 per
Wood V-C , explaining Corbyn v French (1799) 4 Ves 418; Thompson v Whitelock (1859) 4 De G & J 490; Re Turner
(1865) 2 Drew & Sm 501). The position is similar in a postponed gift to 'A or his heirs', where 'heirs' is used in the sense
of 'representatives' (Tidwell v Ariel (1818) 3 Madd 403), but not where the word is used in the sense of persons entitled
as on intestacy; in such a case the heirs take as named individuals (Re Porter's Trust (above)). Where persons referred
to as 'personal representatives' are intended to take beneficially, they take by substitution: Wingfield v Wingfield (1878) 9
Ch D 658.
[330.174]
Page 153
Effect of time of death of prior donee
The effect of the time of death of the prior donee in ascertaining the rights of the donees under a
substitutional gift varies according as the primary gift is to a named person or group of named
persons1, or to a class, and if it is to a class, then according as the gift takes effect immediately on the
testator's death or is postponed to a subsequent date2.
If the primary gift is to a named person or group of named persons, the substitutional gift takes effect on
the death of the primary donee, whether
(1) before the date of the will; or

(2) after the date of the will and before the testator's death3; or
(3) after the testator's death and before the date of distribution4.
If the substitutional gift is to a class, the class consists, in the case of heads (1) and (2) above, of those
who are living at the testator's death and, in the case of head (3) above, of those who are living at the
death of the primary donee5.
If the original gift is to a class, a person who was dead at the date of the will is not included in it6, and
consequently no one can take in his place by way of substitution7. Thus, if the original donees are a
class of parents, and there is a substitutional gift of each parent's share to his children, the children of a
parent dead at the date of the will cannot take8.
A substitutional gift to issue through all degrees is per se contingent. It is a question of construction
when the substitution is to take place, but the substituted issue must survive their parents and also the
date of substitution (if this is different)9.
Where the primary gift to a class is immediate, that is, not preceded by any life or other limited interest,
a substitutional gift on the death of a member of the class takes effect on the death in the lifetime of the
testator of any persons who were living at the date of the will and who, if they had survived, would have
taken as members of the class10.
Where the gift is postponed, the testator is considered to be providing for the death of members of the
class between his own death, or the time of ascertainment of the class, and the period of distribution, or
the time when the gift is to come into possession11. Accordingly, it is prima facie only in respect of
persons who are ascertained as members of the class, and capable of taking under the gift, that
substitution is effected12, and the substitutional gift fails as to those who die before the testator or
before the time when the class is to be ascertained13. If, however, there is no gap between the time of
ascertainment of the class and the time of distribution, persons substituted for donees dying in the
testator's lifetime, even before the date of the will, may be let in14.
1 Ie a number of persons taking not as a class, but as individuals: see [330.155]. Cf Aitken's Trustees v Aitken 1970 SC
28, HL .
2 See Ive v King (1852) 16 Beav 46 at 53-54.
3 Even where the death of the legatee occurs before that of the testator, the gift over takes effect on the presumption that
the ulterior legatee was substituted in order to prevent a lapse of the legacy: Ive v King (1852) 16 Beav 46 at 54. There is
no distinction between a gift to a person known to be alive, and in the event of his death to his children, and a gift to a
person who the testator may suppose or believe to be living, but who is in fact dead, with a gift over to his children in
case of his death: Ive v King (above) at 55-56. As to death of the primary legatee before the date of the will see Hannam
v Sims (1858) 2 De G & J 151; Re Booth's Will Trusts, Robbins v King (1940) 163 LT 77. As to death between the date of
the will and the death of the testator see Le Jeune v Le Jeune (1837) 2 Keen 701; Ive v King (above) at 54; Ashling v
Knowles (1856) 3 Drew 593; Hodgson v Smithson (1856) 8 De GM & G 604; Re Faulding's Trust (1858) 26 Beav 263;
Jones v Frewin (1864) 3 New Rep 415.
4 Ive v King (1852) 16 Beav 46. It makes no difference whether the primary legatee dies before or after the testator, so
long as he dies before the death of the tenant for life or other date of distribution: Ashling v Knowles (1856) 3 Drew 593.
See also Ganapathy Pillay v Alamaloo [1929] AC 462, PC .
Page 154
5 Ive v King (1852) 16 Beav 46 at 57.
6 The testator is not in this case referring to specific individuals whom he believes to be alive (see note 3 above), and, in
referring to a class, he is understood to refer to living persons: Re Hotchkiss' Trusts (1869) LR 8 Eq 643 at 649; Re
Musther, Groves v Musther (1890) 43 Ch D 569 at 572, CA (Eng) ; Re Brown, Leeds v Spencer [1917] 2 Ch 232.
7 In order to claim under the will, the substituted legatees must point out the original legatees in whose place they
demand to stand (Christopherson v Naylor (1816) 1 Mer 320 at 326); and the substitutional gift fails where the
corresponding member of the primary class was dead at the date of the will, and, therefore, could not have taken as a
member of the class under the will (Coulthurst v Carter (1852) 15 Beav 421 at 427; Ive v King (1852) 16 Beav 46 at 53;
Congreve v Palmer (1853) 16 Beav 435; Re Wood's Will (1862) 31 Beav 323).
8 Christopherson v Naylor (1816) 1 Mer 320; Gray v Garman (1843) 2 Hare 268; Re Hotchkiss' Trusts (1869) LR 8 Eq
643; Atkinson v Atkinson (1872) IR 6 Eq 184 at 189; Kelsey v Ellis (1878) 38 LT 471; Re Barker, Asquith v Saville (1882)
47 LT 38; Re Webster's Estate, Widgen v Mello (1883) 23 Ch D 737; Re Chinery, Chinery v Hill (1888) 39 Ch D 614; Re
Musther, Groves v Musther (1890) 43 Ch D 569; Re Wood, Tullett v Colville [1894] 3 Ch 381, CA (Eng) ; Re Offiler,
Offiler v Offiler (1901) 83 LT 758; Gorringe v Mahlstedt [1907] AC 225, HL ; Re Cope, Cross v Cross [1908] 2 Ch 1, CA
(Eng) ; Mackintosh (or Miller) v Gerrard [1947] AC 461, HL ; Re Brooke's Will Trusts, Jubber v Brooke [1953] 1 All ER
668, [1953] 1 WLR 439. In Butter v Ommaney (1827) 4 Russ 70, children of members of the class who had died in the
testator's lifetime were excluded from the substitutional gift. As to certain decisions which were founded on the view that
Christopherson v Naylor (above) should not be followed see Re Hotchkiss' Trusts (above).
9 Re Earle's Settlement Trusts, Reiss v Norrie [1971] 2 All ER 1188, [1971] 1 WLR 1118.
10 Re Hayward, Creery v Lingwood (1882) 19 Ch D 470. As to the members of the substituted class see [330.159] and
following.
11 Re Gilbert, Daniel v Matthews (1886) 54 LT 752.
12 See Re Porter's Trust (1857) 4 K & J 188 at 191-192 per Wood V-C , citing Ive v King (1852) 16 Beav 46. The
substitutional gift took effect in Hilton v Hilton (1866) 15 WR 193.
13 Thornhill v Thornhill (1819) 4 Madd 377; Neilson v Monro (1879) 27 WR 936; Re Hannam, Haddelsey v Hannam
[1897] 2 Ch 39; Re Ibbetson, Ibbetson v Ibbetson (1903) 88 LT 461 (to the child or children of J and H 'or their heirs').
See also Ive v King (1852) 16 Beav 46, where the rule is stated but the authorities cited refer to another point; Ashling v
Knowles (1856) 3 Drew 593 at 595. Cf Smith v Farr (1839) 3 Y & C Ex 328.
14 King v Cleaveland (1858) 26 Beav 26 (affd (1859) 4 De G & J 477) (to persons 'then living' or their representatives);
Re Philps' Will (1868) LR 7 Eq 151 (to persons 'then living' or their heirs).
[330.175]
Gifts to children
The exclusion of children from taking under a gift defined by reference to the parent's share is avoided
where the gift can be construed as original and not substitutional1. Thus, the gift to the children may not
be alternative to a gift actually made to the parent; it may be a gift of a share computed on the
hypothesis that there had been a gift to the parent. This is an original gift to the children, and does not
fail because the parent could not have taken2.
Further, even where the children are expressed to take only their parent's share, according to the
construction of the whole will the class of children may be ascertained, not by reference to those
parents only who could take under the original gift to parents, but by reference to all the parents,
whether eventually capable of taking or not; this, again, is an original gift to the children3.
1 As to original and substitutional gifts see [330.173].
2 Loring v Thomas (1861) 1 Drew & Sm 497; Re Chapman's Will (1863) 32 Beav 382; Re Woolrich, Harris v Harris
(1879) 11 Ch D 663; Re Chinery, Chinery v Hill (1888) 39 Ch D 614 at 618 per Chitty J ; Re Parsons, Blaber v Parsons
(1894) 8 R 430 at 434; Re Lambert, Corns v Harrison [1908] 2 Ch 117; Re Metcalfe, Metcalfe v Earle [1909] 1 Ch 424;
Re Stokes, Barlow v Bullock (1907) 52 Sol Jo 11; Re Taylor, Taylor v White (1911) 56 Sol Jol 175; Re Williams, Metcalf v
Williams [1914] 1 Ch 219 (affd [1914] 2 Ch 61, CA (Eng) ); Re Kirk, Wethey v Kirk (1915) 85 LJ Ch 182; Re Hickey,
Beddoes v Hodgson [1917] 1 Ch 601 (legacy to the descendants of A or their descendants 'living at my death'; words
Page 155
held to govern whole gift). Loring v Thomas (1861) 1 Drew & Sm 497 is not affected by Gorringe v Mahlstedt [1907] AC
225, and is recognised as an authority in Barraclough v Cooper [1908] 2 Ch 121n at 125n. See also Re Lambert, Corns v
Harrison [1908] 2 Ch 117 at 121 per Eve J .
3 Jarvis v Pond (1839) 9 Sim 549 (alternative gift to the children of 'any' sons and daughters 'to have their father's or
mother's part'; children of son and daughter dead at date of will entitled to share, even though 'some violence' was done
in assigning a share to the parents); Loring v Thomas (1861) 1 Drew & Sm 497 ('any' of parents); Re Sibley's Trusts
(1877) 5 Ch D 494 at 501 (where it was said that 'all and every' the parents must mean 'more than two'). In Re Metcalfe,
Metcalfe v Earle [1909] 1 Ch 424 at 426, Joyce J suggested a distinction between a gift to children and a gift to a class of
another description (such as nephews and nieces) where the testator might not have means of knowing the state of the
family. As to a postponed alternative gift see Smith v Smith (1837) 8 Sim 353; Habergham v Ridehalgh (1870) LR 9 Eq
395, where the gifts were original, being framed on the hypothesis that the person for whom the donees were
ascertained members of the class of first donees, and accordingly it was held that these alternative donees might take in
such a case, although the members of the class of first donees predeceased the testator. In Collins v Johnson (1835) 8
Sim 356n the gift was by reference to a prior gift to individuals: see Re Hannam, Haddelsey v Hannam [1897] 2 Ch 39 at
45 per North J .
[330.176]
Composite class of parents and issue
Where a gift is framed as a gift to a composite class formed of a class of parents living at a certain
period and a class of children of parents then dead, there is prima facie an independent and original gift
to that class of children1, and children of parents who were dead before the date of the will may take2,
as well as children of parents who died after that date but before the testator.
1 See Re Lord's Settlement, Martins Bank Ltd v Lord [1947] 2 All ER 685 (settlement); Re Hooper's Settlement Trusts,
Bosman v Hooper [1948] Ch 586, [1948] 2 All ER 261 (settlement). For cases of contrary intention see Waugh v Waugh
(1833) 2 My & K 41, where a direction as to the children's share confined the class of children; Re Thompson's Trusts, ex
p Tunstall (1854) 5 De GM & G 280.
2 Tytherleigh v Harbin (1835) 6 Sim 329; Giles v Giles (1837) 8 Sim 360; Rust v Baker (1837) 8 Sim 443; Bebb v
Beckwith (1839) 2 Beav 308; Gaskell v Holmes (1844) 3 Hare 438; Coulthurst v Carter (1852) 15 Beav 421; Etches v
Etches (1856) 3 Drew 441 at 447 (not followed in Re Earle's Settlement Trusts, Reiss v Norrie [1971] 2 All ER 1188,
[1971] 1 WLR 1118, where a gift over in a marriage settlement to the uncles and aunts who might predecease the
husband was substitutional as the original gift was vested liable to be divested); Re Jordan's Trusts (1863) 2 New Rep
57; Heasman v Pearse (1871) 7 Ch App 275; Re Morrison [1913] VLR 348. In Re Faulding's Trusts (1858) 26 Beav 263,
the parent died in the lifetime of the testatrix, but it does not appear whether he died before or after the date of her will.
[330.177]
Conditions attaching to alternative gift
Conditions attaching to a gift do not prima facie attach to a gift alternative to it, whether original or
substitutional1, although in the case of substitutional gifts it may much more easily be inferred that they
attach than in the case of alternative original gifts2. Thus, unless the testator so provides, it is not in
general necessary that an alternative donee should survive the date of distribution in order to take,
whether the gift is original3 or substitutional4; nor, in an alternative and original gift, is it in general
necessary, unless the testator so provides, that the alternative donee should survive the person for
whom he is alternative5. In a substitutional gift it is, however, in general necessary that the substituted
donee should survive the person for whom he is substituted6.
1 Martin v Holgate (1866) LR 1 HL 175. See also Lyon v Coward (1846) 15 Sim 287; Smith v Palmer (1848) 7 Hare 225;
Barker v Barker (1852) 5 De G & Sm 753; Re Bennett's Trust (1857) 3 K & J 280 at 285; Re Wildman's Trusts (1860) 1
John & H 299; Re Pell's Trust (1861) 3 De GF & J 291; Lanphier v Buck (1865) 2 Drew & Sm 484 at 496. For cases
where the contingency of the first gift applied to the alternative gift see Bennett v Merriman (1843) 6 Beav 360;
Page 156
Macgregor v Macgregor (1845) 2 Coll 192; Re Kirkman's Trust (1859) 3 De G & J 558. In so far as these latter cases do
not depend on the particular contexts of the wills there in question, they are disapproved in Martin v Holgate (1866) LR 1
HL 175.
2 Martin v Holgate (1866) LR 1 HL 175 at 187 per Lord Chelmsford .
3 Thompson v Clive (1857) 23 Beav 282; Martin v Holgate (1866) LR 1 HL 175; Re Woolley, Wormald v Woolley [1903] 2
Ch 206; Campbell's Trustee v Dick 1915 SC 100.
4 Masters v Scales (1850) 13 Beav 60; Re Battersby's Trusts [1896] 1 IR 600; Re Bradbury, Wing v Bradbury (1904) 73
LJ Ch 591, CA (Eng) ; Re Langlands, Langlands v Langlands (1917) 87 LJ Ch 1. Cf Todd's Trustees v Todd's Executrix
1922 SC 1 (substitutional gift, and therefore, no right vested in the children of H, a son, who predeceased the life renter).
The doubt expressed on this point in Crause v Cooper (1859) 1 John & H 207 at 213 per Page Wood V-C was
recognised by him as unfounded in Re Merricks' Trusts (1866) LR 1 Eq 551 at 558. For a case of a context to the
contrary see Re Kirkman's Trust (1859) 3 De G & J 558.
5 Lyon v Coward (1846) 15 Sim 287; Lanphier v Buck (1865) 2 Drew & Sm 484 at 498; Heasman v Pearse (1871) 7 Ch
App 275; Re Woolley, Wormald v Woolley [1903] 2 Ch 206. Cf Re Jordan's Trusts (1863) 2 New Rep 57. For a case of a
contrary intention shown by the will see Barker v Barker (1852) 5 De G & Sm 753.
6 Thompson v Clive (1857) 23 Beav 282; Crause v Cooper (1859) 1 John & H 207; Lanphier v Buck (1865) 2 Drew & Sm
484; Re Turner (1865) 2 Drew & Sm 501; Re Merricks' Trusts (1866) LR 1 Eq 551 at 560 (explained in Re Woolley,
Wormald v Woolley [1903] 2 Ch 206 at 209); Re Manly's Will Trusts, Burton v Williams [1969] 3 All ER 1011 at 1024,
[1969] 1 WLR 1818 at 1831.
[330.178]
Ascertainment of class
Subject to the principle that conditions attaching to a gift do not normally attach to a substituted gift1,
the class of substituted donees is ascertained according to the usual rules2. Whether the members of
classes taking under original and substituted gifts may take concurrently depends on the
correspondence between the members of those classes respectively. A gift to a class of parents or their
children, or parents or their issue, is construed as substituting for each parent his own children or issue,
wherever the context allows that construction3. Thus, when there are words denoting an intention to
divide the property into shares for the purpose of substitution4, the parents surviving the period of
distribution5 and the children or issue of parents dying before that period6 then take concurrently.
Otherwise, where the original and substitutional gifts are both to classes and there is nothing indicative
of a substitution for a member of the original class of a corresponding member of the substituted class7,
the gifts are mutually exclusive, and, if any member of the original class survives the period of
distribution, no member of the substituted class can take8.
In the absence of a contrary intention being shown9, the substituted donees as between themselves
are joint tenants10, even where the original donees are tenants in common and, therefore, as between
original donees and substituted donees taking with them, there is a tenancy in common.
1 As to this principle see [330.177].
2 As to these rules see [330.156] and following. Thus, the class is ascertained at the testator's death (Ive v King (1852)
16 Beav 46 (children); Re Philps' Will (1868) LR 7 Eq 151 at 154 (heirs, in sense of next of kin); Wingfield v Wingfield
(1878) 9 Ch D 658 (heirs)), subject, in the case of a postponed gift, to letting in members of the class coming into
existence before the date of distribution (Re Sibley's Trusts (1877) 5 Ch D 494; Re Jones's Estate, Hume v Lloyd (1878)
47 LJ Ch 775, not following Hobgen v Neale (1870) LR 11 Eq 48 on this point).
3 Re Coley, Gibson v Gibson [1901] 1 Ch 40 at 44; Re Alderton, Hughes v Vanderspar [1913] WN 129.
4 Re Gilbert, Daniel v Matthews (1886) 54 LT 752 (where it was said that in Re Dawes' Trusts (1876) 4 Ch D 210, the
court's attention had not been drawn to the authorities); Re Miles, Miles v Miles (1889) 61 LT 359.
5 For the meaning of 'period of distribution' see [330.160] note 1.

Page 157
6 If all of the original class survive that period, the substituted class are excluded: Re Coley, Gibson v Gibson [1901] 1
Ch 40 at 43.
7 Eg gifts to children 'or their heirs': Finlason v Tatlock (1870) LR 9 Eq 258.
8 Re Coley, Gibson v Gibson [1901] 1 Ch 40.
9 See Lyon v Coward (1846) 15 Sim 287 at 290-291; Hodges v Grant (1867) LR 4 Eq 140; A-G v Fletcher (1871) LR 13
Eq 128; Re Horner, Eagleton v Horner (1887) 37 Ch D 695 at 711, where there were double words of severance
sufficient to apply to the substituted donees.
10 Davenport v Hanbury (1796) 3 Ves 257; Bridge v Yates (1842) 12 Sim 645; Salisbury v Petty (1843) 3 Hare 86 at 93;
Re Hodgson's Trusts (1854) 1 K & J 178; M'Gregor v M'Gregor (1859) 1 De GF & J 63; Penny v Clarke (1860) 1 De GF
& J 425 at 431; Coe v Bigg (1863) 1 New Rep 536; Lanphier v Buck (1865) 2 Drew & Sm 484; Heasman v Pearse (1870)
LR 11 Eq 522 at 535 (on appeal (1871) 7 Ch App 275 at 283); Re Yates, Bostock v D'Eyncourt [1891] 3 Ch 53
(disapproving Shepherdson v Dale (1866) 12 Jur NS 156); Re Battersby's Trusts [1896] 1 IR 600.
[330.179]
Failure of alternative gift
Where an alternative gift fails by reason of the event not having happened on which it is to take effect,
then the prior gift to the first donee may take effect even though he was not living at the period of
distribution1, because the alternative gift operates as a divesting gift only.
In the case of a gift to a group or class, a substitutional gift of the shares of those who die leaving issue
to their issue does not affect the shares of those who die without leaving issue2.
1 Gray v Garman (1843) 2 Hare 268; Salisbury v Petty (1843) 3 Hare 86 at 93.
2 Baldwin v Rogers (1853) 3 De GM & G 649; Strother v Dutton (1857) 1 De G & J 675 at 676.
Page 158
Take/ (ii) Identification of Donees/ (A) Identification by Reference to Relationships
(ii) Identification of Donees
(A) Identification by Reference to Relationships
[330.180]
Introduction
There are rules1 relating to the meaning of particular descriptions of relationship according to English
law and custom. These rules will apply to wills in Malaysia where appropriate, in accordance with the
usual rules of construction applicable to wills2. However, it should be appreciated that the definition of
certain relationships and the meaning of words descriptive of relationship may be different according to
the personal law and custom3 of the testator and, in Malaysia, this can vary according to the ethnic race
of the testator. For example, where the will is that of a Chinese testator, particularly if written in
Chinese, or where there is sufficient evidence that the testator intended that Chinese custom be
followed, the 'English' rules of relationship might not be applicable and it may be appropriate in order to
ascertain the meaning as intended by the testator, to refer to personal law and custom4 of the Chinese
testator.
1 See [330.181]-[330.189].
2 See [330.098] and following. See also Choa Eng Wan v Choa Giang Tee [1923] AC 469, PC , where the court held that
a wider meaning will be given to the word 'children' so as, if necessary, to include, illegitimate or even adopted children if
from the context, or in the surrounding circumstances, the word is shown to have been used by the testator in a broader
sense.
3 See eg Ang Siew Hock v Ang Choon Koay [1970] 2 MLJ 149 (where Chinese customary law was applied).
4 See eg Ang Siew Hock v Ang Choon Koay [1970] 2 MLJ 149; Jong Chan Siong v Loh Shui Kin [1973] 1 MLJ 245, FC ,
where the court accepted expert evidence that the word 'family' according to the usage of the Tai Poo Kheh community,
would include the adopted sons as persons entitled to share in the estate of a deceased. See also Estate and Trust
Agencies Ltd (1927) v Tungku Meriam Binte Almarhoum Sultan Ahmad of Pekan [1948-1949] Supp MLJ 82; Re SAA
Alsagoff (decd), Syed Zakaria Alsagoff v R D Stewart [1958] MLJ 264, where Muslim law and custom was applied where
the testator was a Muslim. Where a question arises as to whether a specific property forms part of the assets of an
estate of a deceased person who is a Muslim in a petition for a letter of administration in the civil High Court see Latifah
bte Mat Zin v Rosmawati bte Sharibun [2007] 5 MLJ 101, FC . Cf Tan Phee Teck v Tan Tiang Hee [1952] MLJ 240, CA
(Sing) (where Chinese custom was not referred to in the construction of the clause in the will which was drawn in the
English language, which was based on its clear and unambiguous language); Chia Khwee Eng v Chia Poh Choon [1923]
AC 424, where the court ruled that in construing the will of an Asian in the English language and employing English
terms of legal art, any consideration of custom and usages of the ethnic race of the testator not supported by its express
terms is excluded.
[330.181]
General rule
Donees may be identified in a will by reference to relationship, or to the holding of an office or

otherwise1. A description by relationship prima facie refers only to persons related by blood2, including
Page 159
the half-blood3, and in the exact relationship, if any, prescribed by the will; for example grandchildren4,
cousins5 or nephews and nieces6. Prima facie such a description does not refer to persons related by
affinity and not consanguinity7; but, by the force of the context of the will8 or the circumstances of the
case9, the description may be extended to include persons related only by affinity10, or in the same or a
different degree of distance in relationship11. The mere fact that in a prior part of the will a person is
described as a relative does not alone admit to a share in a subsequent gift to relatives of that degree
either the named person12 or other persons of like degree with him13; but this fact is an indication in
that direction14, to be taken into consideration along with the context of the whole will and the
circumstances of the case admissible in evidence as to identification15.
1 As to gifts by reference to the holding of an office see [330.202]. A reference to a person as a legatee may refer only to
an effective legatee, so that a person whose bequest fails is excluded from participating in further benefits given to
'legatees': Re Feather as reported in [1945] 1 All ER 552.
2 As to the question of legitimacy see [330.190] and following.
3 Grieves v Rawley (1852) 10 Hare 63 ('niece'); Re Hammersley, Kitchen v Myers (1886) 2 TLR 459; Re Cozens, Miles v
Wilson [1903] 1 Ch 138 ('my own nephews and nieces'); Ward v Van Der Loeff [1924] AC 653, HL ('my brothers and
sisters'; not confined to those existing at the date of the will or to those of the whole blood). Cf Re Reed (1888) 57 LJ Ch
790; Re Dowson, Dowson v Beadle [1909] WN 245 ('my own brothers and sisters'). For the meaning of 'children' see
[330.182].
4 Where there are persons to satisfy the descriptions taken in their ordinary sense, and there is nothing in the will or the
circumstances to give any other sense to the words, 'grandchildren' does not include great-grandchildren (Lord Orford v
Churchill (1814) 3 Ves & B 59), but 'grandchildren of any degree' will include descendants of any degree other than
children (Re Hall, Hall v Hall [1932] 1 Ch 262).
5 'First cousins or cousins german' was held not to include the descendants of first cousins: Sanderson v Bayley (1838) 4
My & Cr 56. 'First and second cousins' was held to include first cousins once and twice removed in Re Colahan, Molloy v
Hara [1967] IR 29. Cf Re Tully, Toolan v Costello [1941] IR 66, where 'all my first cousins, first cousins once removed
and my second cousins' did not include second cousins once removed. 'Cousins', without further qualification, includes
only first cousins: Stoddart v Nelson Stanger v Nelson, (1855) 6 De GM & G 68; Stevenson v Abingdon (1862) 10 WR
591; Burbey v Burbey (1862) 9 Jur NS 96; Copland's Executors v Milne 1908 SC 426. The dictum in Caldecott v Harrison
(1840) 9 Sim 457 at 460, that 'cousins' includes cousins of every description is overruled by the cases previously cited.
'Second cousins' does not normally include first cousins once removed, that is, children or grandchildren of first cousins:
Bridgnorth Corp v Collins (1847) 15 Sim 538 at 541; Re Parker, Bentham v Wilson (1881) 17 Ch D 262, CA (Eng) ,
where Mayott v Mayott (1786) 2 Bro CC 125, Silcox v Bell (1823) 1 Sim & St 301, and Charge v Goodyear (1826) 3 Russ
140 (see note 12 below) are examined. 'Half cousins' includes first cousins, first cousins once removed and second
cousins: Re Chester, Servant v Hills [1914] 2 Ch 580.
6 As a rule 'nephews and nieces' does not include grandchildren (Campbell v Bouskell (1859) 27 Beav 325; M'Hugh v
M'Hugh [1908] 1 IR 155, where the evidence showed that the real nephews and nieces were not the objects of bounty,
and there was nothing to show who were those objects), or great-nephews or great-nieces (Falkner v Butler (1765) Amb
514; Shelley v Bryer (1821) Jac 207; Williamson v Moore (1862) 8 Jur NS 875; Re Blower's Trusts (1871) 6 Ch App 351);
and 'nieces' does not include great-nieces (Crook v Whitley (1857) 7 De GM & G 490).
7 Hussey v Berkeley (1763) 2 Eden 194 at 196 (widow of a grandson, not a grandchild); Smith v Lidiard (1857) 3 K & J
252; Merrill v Morton (1881) 17 Ch D 382.
8 See Re Cozens, Miles v Wilson [1903] 1 Ch 138. As to the general rules as to construction see [330.098] and
following.
9 See Re Cozens, Miles v Wilson [1903] 1 Ch 138. As to the principle of falsa demonstratio see [330.129].
10 Frogley v Phillips (1861) 3 De G F & J 466; Re Gue, Smith v Gue (1892) 61 LJ Ch 510 (affd [1892] WN 132, CA (Eng)
), where a nephew of the testator's wife took as a 'nephew' and the wife of that nephew took as a 'niece'; Re Daoust
[1944] 1 All ER 443, where 'nephews and nieces' included relations by marriage, but not those traced through two
marriages, eg husbands of nieces of the testatrix' husband; Re Davidson, National Provincial Bank Ltd v Davidson [1949]
Ch 670, [1949] 2 All ER 551, where 'grandchildren' was held to mean grandchildren of the husband of the testatrix by a
former wife; Re Tylor, Barclays Bank Ltd v Norris (1968) 112 Sol Jo 486, where 'nephews and nieces' was held to
include relations by marriage. In Re Richards (1939) 162 LT 47, 'brothers-in-law' and 'sisters-in-law' were construed in
the strict sense, ie as persons traced through one marriage. Relatives by affinity are held to take rather than that the gift
fail, for example where the testator has no relatives by consanguinity of the described kind, and none can come into
existence to satisfy the description (Hogg v Cook (1863) 32 Beav 641; Adney v Greatrex (1869) 38 LJ Ch 414; Sherratt v
Mountford (1873) 8 Ch App 928), or where it is shown that the testator treated the claimant as his own relative, and did
not know of the existence of the relative by consanguinity (Grant v Grant (1870) LR 5 CP 380; on appeal LR 5 CP 727,
Ex Ch ). Certain dicta in Grant v Grant (above)) For the meaning of 'nephew' were dissented from in Wells v Wells (1874)
Page 160
LR 18 Eq 504 at 506, and in Merrill v Morton (1881) 17 Ch D 382 at 386, and were distinguished in Re Taylor, Cloak v
Hammond (1886) 34 Ch D 255 at 257-258, CA (Eng) . 'Cousin' may be understood in the circumstances to mean the
wife of a cousin: Re Taylor, Cloak v Hammond (1886) 34 Ch D 255.
11 A gift to the testator's 'first and second cousins' has in various contexts been held to include first cousins once or twice
removed. And other relations not more remote in degree than second cousins: Mayott v Mayott (1786) 2 Bro CC 125
(where a great-niece was also included); Silcox v Bell (1823) 1 Sim & St 301; Charge v Goodyear (1826) 3 Russ 140;
Wilks v Bannister (1885) 30 Ch D 512. 'Second cousins' has been held to include first cousins once and twice removed,
where no true second cousins existed: Slade v Fooks (1838) 9 Sim 386; Re Bonner, Tucker v Good (1881) 19 Ch D 201.
See also Re Rickit's Trusts (1853) 11 Hare 299 (where 'niece' was held to mean 'nephew'); Stringer v Gardiner (1859) 4
De G & J 468 (where a gift to 'my niece E S' went to a great-great-niece of similar name); Weeds v Bristow (1866) LR 2
Eq 333, where 'nephews' included great-nephews.
12 Thus, where a husband's niece or wife's niece is described as 'my niece A', she does not necessarily take under a
subsequent gift to 'my nephews and nieces': Smith v Lidiard (1857) 3 K & J 252; Wells v Wells (1874) LR 18 Eq 504;
Merrill v Morton (1881) 17 Ch D 382; Re Green, Bath v Cannon [1914] 1 Ch 134. Where a grand-nephew is described as
'my nephew J', he does not necessarily take under a gift to 'my nephews and nieces': Thompson v Robinson (1859) 27
Beav 486. See also Re Blower's Trusts (1871) 6 Ch App 351.
13 Re Winn, Burgess v Winn (1916) 86 LJ Ch 124, where the description of certain of a wife's nieces as 'my nieces' did
not bring them all into a residuary gift to 'all my nephews and nieces'; Re Ridge, Hancock v Dutton (1933) 149 LT 266,
CA (Eng) , where the description of a grand-nephew as 'nephew' did not entitle grand-nephews to share a gift to
'nephews'.
14 Hussey v Berkeley (1763) 2 Eden 194 where a great-granddaughter was described as 'my granddaughter'; James v
Smith (1844) 14 Sim 214, where 'my niece M daughter of my nephew T' was admitted to share in a gift to 'my nephews
and nieces' (distinguished in Re Ridge, Hancock v Dutton (1933) 149 LT 266, CA (Eng) ).
15 Re Cozens, Miles v Wilson [1903] 1 Ch 138 at 142-143, where 'my own nephews and nieces' excluded nephews by
affinity previously called 'my nephew A' etc.
[330.182]
Children
In a will, 'children', with reference to the children of a named person1, in its ordinary sense2 refers to the
first generation only of descendants3 by any marriage4, and does not include any grandchildren5 or
remoter descendants6, but by the context and the circumstances admissible in evidence7 it may be
extended to such other generations of descendants8, to the whole line capable of inheriting from the
named person9, to illegitimate children10 or to stepchildren11. In any disposition of movable or
immovable property made, whether by instrument inter vivos or by will (including codicil), after the date
of an adoption order, any reference, whether express or implied, to the children of the adopter includes,
unless the contrary intention appears, the adopted child; and any reference, whether express or
implied, to the children of the adopted person's natural parents, or either of them, does not, unless the
contrary intention appears, include the adopted child12; and any reference (whether express or implied)
to a person related to the adopted child in any degree is, unless the contrary intention appears, to the
person who would be related to him in that degree if he were the child of the adopter born in lawful
wedlock and not the child of any other person. There is no fixed rule of construction that, where a
legacy is given to 'children' of a person known by the testator to be dead at the date of the will and to
have no child then living, grandchildren will take13.
Where the will is that of a Chinese testator and there is sufficient evidence that the testator intended
that Chinese customs be followed, the court may apply the personal law and custom of the testator14.
1 As to the time of ascertainment of a class of children see [330.156].
2 As to the general rule of construction see [330.098] and following.
3 As to the position of illegitimate children under wills see [330.190] and following.
4 This is so even though a second marriage is not in the testator's contemplation: Champion v Pickax (1737) 1 Atk 472;
Page 161
Barrington v Tristram (1801) 6 Ves 345; Ex p Earl of Ilchester (1803) 7 Ves 348 at 380; Critchett v Taynton (1830) 1
Russ & M 541; Nash v Allen (1889) 42 Ch D 54 at 59. A reference to a present or future husband did not exclude a
deceased husband's children in Pasmore v Huggins (1855) 21 Beav 103; Re Pickup's Trusts (1861) 1 John & H 389. The
contexts in Stavers v Barnard (1843) 2 Y & C Ch Cas 539 (certain children of a prior marriage specially named); Stopford
v Chaworth (1845) 8 Beav 331; Lovejoy v Crafter (1865) 35 Beav 149; Re Parrott, Walter v Parrott (1886) 33 Ch D 274,
CA (Eng) ; Re Baynham, Hart v Mackenzie (1891) 7 TLR 587 ('our children' in will in favour of second wife), excluded the
children of prior marriage. In Re Potter's Will Trusts [1944] Ch 70, [1943] 1 All ER 805, CA (Eng) , 'any child' included
children of a second marriage.
5 Reeves v Brymer (1799) 4 Ves 692 at 697; Radcliffe v Buckley (1804) 10 Ves 195; Thellusson v Woodford (1829) 5
Russ 100 at 106; Stavers v Barnard (1843) 2 Y & C Ch Cas 539 at 540; Loring v Thomas (1861) 1 Drew & Sm 497 at
508.
6 Pride v Fooks (1858) 3 De G & J 252 at 275; Re Atkinson, Pybus v Boyd [1918] 2 Ch 138.
7 As to evidence for identification purposes see generally [330.073], [330.079] and following.
8 Thus, 'children' may be construed as 'grandchildren' where the context shows that the testator has used the word in an
extended sense (Royle v Hamilton (1799) 4 Ves 437; Radcliffe v Buckley (1804) 10 Ves 195 at 201; Re Blackman (1852)
16 Beav 377 (name added); Re Crawhall's Trust (1856) 8 De GM & G 480 at 487), or where the circumstances
admissible in evidence give rise to a similar inference, for example in the case of a legacy to the children of a deceased
person, where at the date of the will there are, to the testator's knowledge, no children, but only grandchildren alive (Re
Smith, Lord v Hayward (1887) 35 Ch D 558 at 559 per Kay J ).'Grandchildren of any degree' may include all lawful
descendants except children. See Re Hall, Hall v Hall [1932] 1 Ch 262. 'Children' cannot, it appears, be construed as
'grandchildren' where the parent of the children is alive but has no children at the date of the will (see Hawkins on Wills
(3rd Edn) 110 citing Moor v Raisbeck (1841) 12 Sim 123, where, however, the context only was relied upon), or where
the context of the will draws a distinction between children and grandchildren (Loring v Thomas (1861) 1 Drew & Sm 497
at 509); and there would be more difficulty in giving 'children' that meaning in case of a gift to the children of several
persons, some of whom had children but others grandchildren only, as the court would be disinclined to give different
meanings to the same word (Radcliffe v Buckley (1804) 10 Ves 195 at 201; Re Smith, Lord v Hayward (1887) 35 Ch D
558 at 560 per Kay J ). As to whether, if there are no children but grandchildren and great-grandchildren, the
grandchildren may take to the exclusion of great-grandchildren see Fenn v Death (1856) 23 Beav 73 where it was so
held. Cf, however, Pride v Fooks (1858) 3 De G & J 252 at 275-279 per Turner LJ ; Re Kirk, Nicholson v Kirk (1885) 52
LT 346 at 348.
9 Eg in direct gifts (Brown v Lewis (1884) 9 App Cas 890, HL ), and in gifts over (Doe d Smith v Webber (1818) 1 B & Ald
713; Re Synge's Trusts (1854) 3 I Ch R 379; Re Milward's Estate [1940] Ch 698).
10 See [330.190] and following. See also Choa Eng Wan v Choa Giang Tee [1923] AC 469, PC .
11 Eg where the testator has no children and is accustomed to call his stepchildren by the name 'children' see Re Jeans,
Upton v Jeans (1895) 72 LT 835.
12 See the Adoption Act 1952 (Act 257) s 9(3); and see also [330.195] (this applies also in the case of intestacy). As to
adopted children see Re Fletcher, Barclays Bank Ltd v Ewing [1949] Ch 473, [1949] 1 All ER 732; Re Gilpin, Hutchinson
v Gilpin [1954] Ch 1, [1953] 2 All ER 1218; Re Jone's Will Trusts, Jones v Squire [1965] Ch 1124, [1965] 2 All ER 828;
Re Jebb, Ward-Smith v Jebb [1966] Ch 666, [1965] 3 All ER 358, CA (Eng) ; Re Brinkley's Will Trusts, Westminster Bank
Ltd v Brinkley [1968] Ch 407, [1967] 3 All ER 805. See also generally FAMILY LAW (2013 Reissue) [390.002] and
following.
13 Re Kirk, Nicholson v Kirk (1885) 52 LT 346; Re Atkinson, Pybus v Boyd [1918] 2 Ch 138.
14 Ang Siew Hock v Ang Choon Koay [1970] 2 MLJ 149, where the words 'the children and the descendants of the
testator' was construed according to Chinese custom to mean only male issues and their descendants; Jong Chan Siong
v Loh Shui Kin [1973] 1 MLJ 245, FC , where the court admitted expert evidence of the usage of the Tai Poo Khek
community and construed the word 'family' to include all adopted sons of the testator; Quaik Kee Hock v Wee Geok Neo
(1886) 4 Ky 128, where the court held that the word children was shown to have been used by testator in a broader
sense and reference to 'sons' must have meant his adopted sons. Cf Re Lam Chee Tong (decd) [1949] MLJ 1 and Re
Tan Hong (decd) [1962] MLJ 355, where the courts held that the meaning of 'child' or 'children' did not extend to include
'adopted children'.
[330.183]
Descendants
'Descendants' now ordinarily refers to children, grandchildren and other issue1 of every degree of
Page 162
remoteness2 in descent. Although the word may be confined to mean children by a sufficiently strong
context3, the court does not restrict the word to that sense merely because the testator speaks of the
descendants taking their parents' share4. The class of descendants taking under a gift is ascertained
according to the ordinary rules for ascertaining a class5. When ascertained, the descendants prima
facie take per capita and not per stirpes6; but, in a gift to a group of persons or their descendants, the
descendants prima facie take by way of substitution only, and not in competition with their parents, if
living at the time of distribution7.
1 Oddie v Woodford (1821) 3 My & Cr 584 at 617 ('posterity of all kinds'). Dispositions made to 'descendants' excluded
illegitimate persons: see [330.190]; and Sydall v Castings Ltd [1967] 1 QB 302, [1966] 3 All ER 770, CA (Eng) .
2 Such a description, the members being ascertained according to the ordinary rules, is not void for uncertainty: Pierson
v Garnet (1786) 2 Bro CC 38, 226.
3 Smith v Pepper (1859) 27 Beav 86; Williamson v Moore (1862) 8 Jur NS 875 ('my nephews and nieces being
descendants of my brothers and sisters'). Cf Legard v Haworth (1800) 1 East 120 at 130 (restricted to children and
grandchildren); Re Hickey, Beddoes v Hodgson [1917] 1 Ch 601 ('descendants' or 'their descendants').
4 Ralph v Carrick (1879) 11 Ch D 873, CA (Eng) , where the court refused to apply the rule in Sibley v Perry (1802) 7
Ves 522; Re Manly's Will Trusts (No 2), Tickle v Manly [1976] 1 All ER 673.
5 Tucker v Billing (1856) 2 Jur NS 483; Re Roberts, Repington v Roberts-Gawen (1881) 19 Ch D 520, CA (Eng) . As to
gifts to classes see [330.156] and following.
6 Crosley v Clare (1761) 3 Swan 320n; Butler v Stratton (1791) 3 Bro CC 367; Re Flower, Matheson v Goodwyn (1890)
62 LT 216 (revsd on another point 63 LT 201, CA (Eng)) . See also Rowland v Gorsuch Price v Gorsuch, (1789) 2 Cox
Eq Cas 187, where the context required a stirpital distribution. Cf Re Rawlinson, Hill v Withall [1909] 2 Ch 36.
7 Jones v Torin (1833) 6 Sim 255; Dick v Lacy (1845) 8 Beav 214; Re Flower, Matheson v Goodwyn (1890) 62 LT 216;
Re Morgan, Morgan v Morgan [1893] 3 Ch 222 at 227, 231, CA (Eng) ; Re Manly's Will Trusts (No 2), Tickle v Manly
[1976] 1 All ER 673. See also Fu Chuen Sang v Cheung Ching Tak [1961] HKLR 219. The position is similar in the case
of a gift to a group of individuals and their descendants: Tucker v Billing (1856) 2 Jur NS 483.
[330.184]
Heir or heirs
In a direct gift to the heir where the ancestor is living, as no one can be the heir of a living person, the
technical meaning may be displaced, and the person who is heir presumptive may be designated1.
Otherwise the heir is prima facie ascertained at the ancestor's death, whether the ancestor is the
testator or any other person, and whether the gift is immediate or future2.
1 Doe d Winter v Perratt (1843) 6 Man & G 314 at 363, HL, per Lord Brougham LC ; Dormer v Phillips (1855) 4 De GM &
G 855.
2 Danvers v Earl of Clarendon (1681) 1 Vern 35; Doe d Pilkington v Spratt (1833) 5 B & Ad 731; Rawlinson v Wass
(1852) 9 Hare 673; Re Frith, Hindson v Wood (1901) 85 LT 455; Re Maher, Maher v Toppin [1909] 1 IR 70 at 76, CA (Ir)
. See also Lightfoot v Maybery [1914] AC 782, HL ; Re Hooper, Hooper v Carpenter [1936] Ch 442, [1936] 1 All ER 277,
CA (Eng) ; Lucas-Tooth v Lucas-Tooth [1921] 1 AC 594, HL . As to a gift to a person or his heirs see Hamilton v Mills
(1861) 29 Beav 193 at 198 per Romilly MR ; Re Ibbetson, Ibbetson v Ibbetson (1903) 88 LT 461 at 462; Re Whitehead,
Whitehead v Hemsley [1920] 1 Ch 298 at 304.
[330.185]
Next of kin
Under a gift to the next of kin of any person1, simply and without reference either to intestacy or to the
Page 163
Statutes of Distribution2, the donees are considered to be the nearest kindred in blood3, including the
half-blood4, and not to be the statutory next of kin; and prima facie they take as joint tenants. The same
meaning is attached prima facie to descriptions similar to next of kin5. In a gift to the next of kin of two
persons, prima facie the donees are a class composed of the next of kin of one together with the next
of kin of the other6, but, according to the context, may be such persons as are common to the two
classes of next of kin7.
References to any Statutes of Distribution in a will coming into operation, or an instrument inter vivos
made after 19 January 1984, the date when the Distribution Act 1958 came into force, are to be
construed as references to the provisions for the distribution of residuary estates of intestates under the
Act8. References in such a will or instrument to statutory next of kin are to be construed, unless the
context otherwise requires, as referring to the persons who would take beneficially on an intestacy
under those provisions. Trusts declared in a will or instrument inter vivos which came into operation
before the 19 January 1984 by reference to the former Statutes of Distribution are, unless the contrary
thereby appears, to be construed by reference to those former statutes9. Hence, in general the former
Statutes of Distribution apply where the trust is created by the will of a testator who died before 19
January 1984, even though the event which brings the trust into effect occurs after that date10; and also
where the will, although coming into operation after 19 January 1984, declares trusts by reference to a
settlement made before that date11. Prima facie12, a wife13 or husband14 was not included in 'next of
kin', either apart from the Statutes of Distribution or under them, but it is otherwise for the purposes of
the present legislation15.
1 See Robson v Ibbs (1837) 6 LJ Ch 213, where the context supplied the want of mention of the person in question.
2 References to the former Statutes of Distribution are construed as references to the pre-1958 position, which is
governed by the Distribution Enactment (FMS Cap 71) and the Distribution Ordinance 1958 (FM Ord No 1 of 1958). The
Distribution Ordinance 1958 came into force on 1 May 1958 (Government Gazette LN 133/1958) and repealed the
Distribution Enactment. However, the Distribution Ordinance 1958 was subsequently superseded by the Distribution Act
1958 (Act 300) which came into force on 19 January 1984: see the Distribution Act 1958 s 10, Schedule.
3 Brandon v Brandon (1819) 3 Swan 312 (settlement); Elmsley v Young (1835) 2 My & K 780 (settlement); Withy v
Mangles (1843) 10 Cl & Fin 215, HL (settlement) (applied to wills in Avison v Simpson (1859) John 43); Halton v Foster
(1868) 3 Ch App 505; Re Bulcock, Ingham v Ingham [1916] 2 Ch 495 ('nearest of kin to myself').
4 Cotton v Scarancke (1815) 1 Madd 45 (explained in Halton v Foster (1868) 3 Ch App 505); Brigg v Brigg (1885) 33 WR
454; Re Fergusson's Will [1902] 1 Ch 483.
5 Harris v Newton (1877) 46 LJ Ch 268 ('legal or next of kin').
6 Re Soper, Naylor v Kettle [1912] 2 Ch 467.
7 Pycroft v Gregory (1829) 4 Russ 526. As to the effect of the context see Williams v Ashton (1860) 1 John & H 115 at
119 ('nearest of kin by kinship'; heir held entitled).
8 In a suitable context 'statutory next of kin' may designate a hypothetical class: Re Krawitz's Will Trusts, Krawitz v
Crawford [1959] 3 All ER 793 at 797, [1959] 1 WLR 1192 at 1196.
9 Ie the law relating to the distribution of effects of estates which was in force immediately before that date (see note 2
above).
10 See Re Sutcliffe, Sutcliffe v Robertshaw [1929] 1 Ch 123; Re Sutton, Evans v Oliver [1934] Ch 209. Cf Re Vander
Byl, Fladgate v Gore [1931] 1 Ch 216. There is no contrary intention where there is nothing more than a declaration of
trust by reference to the statutes: Re Hooper's Settlement, Phillips v Lake [1943] Ch 116, [1943] 1 All ER 173, CA (Eng) .
Note that although the English cases cited here refer to persons entitled as the testator's next of kin under the English
Statutes of Distribution in force at the date of the testator's death, the principle may be applied to Malaysian cases as
well.
11 See Re Walsh, Public Trustee v Walsh [1936] 1 All ER 327, CA (Eng) .
12 See Re Collins' Trust [1877] WN 87 (widow included in the context).
13 See Garrick v Lord Camden Patton v Jones, (1807) 14 Ves 372 at 385; Lee v Lee (1860) 1 Drew & Sm 85; Re Parry,
Leak v Scott [1888] WN 179; Re Fitzgerald's Trusts (1889) 61 LT 221 ('next of kin in blood'; a case of a settlement).
Where, however, the donees are the persons who by virtue of the statute would be entitled to the testator's estate, the
widow is included: Martin v Glover (1844) 1 Coll 269; Jenkins v Gower (1846) 2 Coll 537.
Page 164
14 See Milne v Gilbart Milne v Milne Milne v Walker, , (1852) 2 De GM & G 715; Walker v Cusin [1917] 1 IR 63.
15 See Re Gilligan [1950] P 32 at 37, [1949] 2 All ER 401 at 405.
[330.186]
Wife or husband
Where a donee is described as the wife1 of a person, and that person is married at the date of the will,
then, in the absence of a context to the contrary, the wife existing at the date of the will prima facie is
intended to take, and not any subsequent wife2. The fact that the interest conferred is only during
widowhood, after a life estate to the husband3, or that it is expressed to be given for the support of the
wife and her husband and his children4, does not of itself show any contrary intention. If the context
shows that intention, or the circumstances so indicate, 'wife' may include a subsequent wife5, a person
not married to the testator or other person whose wife she is said to be6, or a woman living with a man
as his wife7.
Similar rules apply to 'husband'8.
1 The meaning of 'wife' may vary according to Chinese law and custom in the will of a Chinese testator as prior to the
coming into force of the Law Reform (Marriage and Divorce) Act 1976 (Act 164) on l March 1982, whereby the Chinese
were allowed a plurality of wives by customary marriage. See Re Lee Gee Chong (decd), Tay Geok Yap v Tan Lian
Cheow [1965] 1 MLJ 102, FC , where the court recognised Chinese customary law and the Chinese secondary marriage;
Mun Mow Cheng v Tan Nam Chee [1998] Mallal's Digest para 2595, following Re Lee Gee Chong (decd), Tay Geok Yap
v Tan Lian Cheow (above). The rules in the text and notes 2-8 below set out the 'common law' meaning of the term
according to the English cases. As to marriage see generally FAMILY LAW (2013 Reissue) [390.199] and following.
2 Garratt v Niblock (1830) 1 Russ & M 629; Re Drew, Drew v Drew [1899] 1 Ch 336 at 339 per Stirling J (followed in Re
Coley, Hollinshead v Coley [1903] 2 Ch 102 at 104, 109, CA (Eng) ); Re D'Oyley, Swayne v D'Oyley (1921) 152 LT Jo
259. See also Re Hancock, Malcolm v Burford-Hancock [1896] 2 Ch 173, CA (Eng) (settlement). As to a gift to the
'widow' of any person, cf Re Lory (1891) 7 TLR 419. Where there is no wife at the date of the will or at the testator's
death, the first person to answer the description is presumed to be intended: see Re Hickman, Hickman v Hickman
[1948] Ch 624, [1948] 2 All ER 303.
3 Re Coley, Hollinshead v Coley [1903] 2 Ch 102 at 104 per Kekewich J . See also the cases cited in note 4 below.
4 Boreham v Bignall (1850) 8 Hare 131, followed in Re Burrow's Trusts (1864) 10 LT 184, and Firth v Fielden (1874) 22
WR 622. Cf Re Lyne's Trust (1869) LR 8 Eq 65 (which, although followed in Re Lory (1891) 7 TLR 419, was not followed
in Firth v Fielden (1874) 22 WR 622 and was disapproved in Re Griffiths' Policy [1903] 1 Ch 739); Re Coley, Hollinshead
v Coley [1903] 2 Ch 102.
5 Longworth v Bellamy (1871) 40 LJ Ch 513; Re Drew, Drew v Drew [1899] 1 Ch 336 (in both cases a discretionary trust,
after a determinable life interest, for the benefit of the donee, his wife and children was relied upon as excluding the rule).
See also Peppin v Bickford (1797) 3 Ves 570 (person not married until after death of testator; second wife included); Re
Hardyman, Teesdale v McClintock [1925] Ch 287. In such cases, prima facie no one can take who is not at the death of
the named person in the position of his legal wife, and a divorce disentitles her: Re Morrieson, Hitchens v Morrieson
(1888) 40 Ch D 30; Re Williams' Settlement, Greenwell v Humphries [1929] 2 Ch 361, CA (Eng) ; Re Slaughter, Trustees
Corp Ltd v Slaughter [1945] Ch 355, [1945] 2 All ER 214. Cf Bullmore v Wynter (1883) 22 Ch D 619.
6 In the following cases the circumstances showed that a mistress or partner in an invalid marriage was denoted by the
term 'wife': Giles v Giles Penfold v Penfold, (1836) 1 Keen 685; Doe d Gains v Rouse (1848) 5 CB 422 (cases in which
the name of the so-called wife was added); Pratt v Mathew (1856) 22 Beav 328 at 337; Re Petts (1859) 27 Beav 576;
Turner v Brittain (1863) 3 New Rep 21; Re Boddington, Boddington v Clairat (1884) 25 Ch D 685, CA (Eng) ; Anderson v
Berkley [1902] 1 Ch 936; Re Wagstaff, Wagstaff v Jalland [1908] 1 Ch 162, CA (Eng) ; Re Hammond, Burniston v White
[1911] 2 Ch 342; Re Smalley, Smalley v Scotton [1929] 2 Ch 112, CA (Eng) (where the lawful wife was living); Re
Lynch, Lynch v Lynch [1943] 1 All ER 168 ('wife', 'widowhood' and 'remarriage' made applicable to spinster by testator's
own dictionary).
7 Re Brown, Golding v Brady (1910) 26 TLR 257.
8 Franks v Brooker (1860) 27 Beav 635; Radford v Willis (1871) 7 Ch App 7. In Re Bryan's Trust (1851) 2 Sim NS 103,
the context referred to a named husband. In Nash v Allen (1889) 42 Ch D 54, by the context the description meant
'husband surviving her'. A gift to the husband of an unmarried woman, if there is no such person either at the date of the
Page 165
will or at the testator's death, takes effect in favour of her husband if and when she marries: Blount v Crozier [1917] 1 IR
461. A divorced husband was held not to be a 'surviving husband' in Bosworthick v Clegg (1929) 45 TLR 438, approved
in Re Williams' Settlement, Greenwell v Humphries [1929] 2 Ch 361, CA (Eng) .
[330.187]
During widowhood
If a gift is to the wife, who is accurately so described, expressly 'during widowhood', those words form a
condition as to the beginning and ending of her interest, so that the effect of a subsequent divorce
before the gift takes effect is that she is disentitled to the gift, as she does not then become a widow1. If
she is not accurately so described, the words may be read as meaning 'until death or remarriage'2.
1 Re Boddington, Boddington v Clairat (1884) 25 Ch D 685, CA (Eng) ; Re Kettlewell, Jones v Kettlewell (1907) 98 LT
23.
2 Re Wagstaff, Wagstaff v Jalland [1908] 1 Ch 162, CA (Eng) ; Re Hammond, Burniston v White [1911] 2 Ch 342. Cf Re
Gale [1941] Ch 209, [1941] 1 All ER 329, where Re Boddington, Boddington v Clairat (1884) 25 Ch D 685, CA (Eng) ,
was followed.
[330.188]
Family, friends or dependants
A gift in the will of a married man to his family, or a gift of personalty alone1 to the family of any person,
is prima facie a gift to his children2, who prima facie take as joint tenants3, or, if there are no children, to
all such persons as would in the case of his intestacy be entitled to take his personal estate4.
In differing circumstances, 'family'5 may also mean a man's household consisting of himself, his wife,
children and servants6; or his wife and children7; or his next of kin8; or his genealogical stock9. The
word may include any relative whatever, where used to denote the objects of a power of appointment10
or the grantees of an option11, or descendants of every degree12.
In a devise of realty to any named family or the family of any person, the head of the family, or the
eldest son and heir presumptive of that person, is prima facie designated, according to the
circumstances13.
Where the family is defined merely by a surname, the court may ascertain from the circumstances of
the case what family of that surname was best known to the testator, and the persons to take may be
determined accordingly14.
Where none of these meanings can be given consistently with the will, then in default of evidence as to
the testator's intention15, the gift may be void for uncertainty16.
So long as it is not necessary, in order to ascertain the quantum of the intended benefit, to establish the
totality of the members of the class, a gift to 'friends' is valid17. For this purpose, the relationship must
have been a long standing one, must have been a social as opposed to a business or professional
relationship, and, when and if circumstances permitted, there must have been frequent meetings18.
'Dependants' in a will has been held too uncertain in meaning for the court to give effect to it19.
1 The same rule may be applicable to a mixed fund of real and personal estate (Barnes v Patch (1803) 8 Ves 604), or to
Page 166
real estate devised alone (Reay v Rawlinson (1860) 29 Beav 88; Burt v Hellyar (1872) LR 14 Eq 160).
2 Beales v Crisford (1843) 13 Sim 592; Wood v Wood (1843) 3 Hare 65; Re Parkinson's Trust (1851) 1 Sim NS 242 at
245; Gregory v Smith (1852) 9 Hare 708; Re Terry's Will (1854) 19 Beav 580; Pigg v Clarke (1876) 3 Ch D 672; Re
Hutchinson and Tenant (1878) 8 Ch D 540 at 541 per Jessel MR ; Re Muffett, Jones v Mason (1886) 55 LT 671. Other
relatives are prima facie excluded: Wood v Wood (1843) 3 Hare 65; Burt v Hellyar (1872) LR 14 Eq 160; Re Battersby's
Trusts [1896] 1 IR 600. See also Cheok Chin Huat v Cheok Chin Soo [1937] MLJ 157, where 'devise to certain named
beneficiaries and their families' was held to include the lawful children but not the adopted children of the beneficiaries.
Cf Jong Chan Siong v Loh Shui Kin [1973] 1 MLJ 245, FC , where 'family' was given its ordinary meaning among the Tai
Poo Kheh community and read to include all adopted sons of the testator.
3 Beales v Crisford (1843) 13 Sim 592; Gregory v Smith (1852) 9 Hare 708 at 712. For a case where the children were
held to take as tenants in common see Owen v Penny (1850) 14 Jur 359.
4 Doe d Chattaway v Smith (1816) 5 M & S 126 at 130 per Lord Ellenborough CJ ; Grant v Lynam (1828) 4 Russ 292 at
297; Re Maxton (1858) 4 Jur NS 407.
5 Blackwell v Bull (1836) 1 Keen 176 at 181 per Lord Langdale MR . 'Family' is 'a word of most loose and flexible
description': Green v Marsden (1853) 1 Drew 646 at 651 per Kindersley V-C . See also Morton v Tewart (1842) 2 Y & C
Ch Cas 67 at 81.
6 See Blackwell v Bull (1836) 1 Keen 176; Pigg v Clarke (1876) 3 Ch D 672 at 674 per Jessel MR .
7 Blackwell v Bull (1836) 1 Keen 176; Re Drew, Drew v Drew [1899] 1 Ch 336 at 342. See also MacLeroth v Bacon
(1799) 5 Ves 159 (husband there included, although not so as a general rule); James v Lord Wynford (1854) 2 Sm & G
350.
8 Cruwys v Colman (1804) 9 Ves 319: see note 10 below.
9 Lucas v Goldsmid (1861) 29 Beav 657 at 660 per Romilly MR . See also Re Macleay (1875) LR 20 Eq 186 at 187.
10 Grant v Lynam (1828) 4 Russ 292. See also Re Keighley, Keighley v Keighley [1919] 2 Ch 388 (appointment among
'my people'). A disposition in favour of an illegitimate descendant was held valid in Lambe v Eames (1871) 6 Ch App
597.
11 Re Barlow's Will Trusts [1979] 1 All ER 296, [1979] 1 WLR 278.
12 Williams v Williams (1851) 1 Sim NS 358 at 371. See also Doe d King v Frost (1820) 3 B & Ald 546 (to 'younger
branches of the family'). Cf Doe d Smith v Fleming (1835) 2 Cr M & R 638 (where a similar gift was in the circumstances
void for uncertainty); Armstrong v Armstrong (1888) 21 LR Ir 114, CA (Ir) .
13 Chapman's Case (1574) 3 Dyer 333b.
14 Gregory v Smith (1852) 9 Hare 708; Charitable Donations and Bequests Comrs v Deey (1891) 27 LR Ir 289.
15 As to the admissibility of evidence of the testator's intention see [330.073] and following.
16 Harland v Trigg (1782) 1 Bro CC 142; Doe d Hayter v Joinville (1802) 3 East 172; Yeap Cheah Neo v Ong Cheng Neo
[1875] LR 6 PC 381 at 395; Re Cullimore's Trusts (1891) 27 LR Ir 18. See also Robinson v Waddelow (1836) 8 Sim 134
(where a gift to daughters 'and their husbands and families' was rejected); but see Re Parkinson's Trust, ex p Thompson
(1851) 1 Sim NS 242 at 245-246.
17 Re Coates, Ramsden v Coates [1955] Ch 495, [1955] 1 All ER 26; Re Gibbard, Public Trustee v Davis [1966] 1 All ER
273, [1967] 1 WLR 42; Re Barlow's Will Trusts [1979] 1 All ER 296, [1979] 1 WLR 278. For cases where 'friends and
relations' has been read as 'relations' see [330.189] note 1.
18 Re Barlow's Will Trusts [1979] 1 All ER 296, [1979] 1 WLR 278.
19 Re Ball, Hand v Ball [1947] Ch 228, [1947] 1 All ER 458, where there was a gift to the son 'or his dependants equally',
and the son took absolutely (doubted in Re Baden's Deed Trusts (No 2) [1973] Ch 9 at 21, [1972] 2 All ER 1304 at 1311,
CA (Eng), per Sachs LJ ). Cf Re Sayer, MacGregor v Sayer [1957] Ch 423, [1956] 3 All ER 600; Re Saxone Shoe Co
Ltd's Trust Deed, Re Abbott's Will Trusts, Abbott v Pearson [1962] 2 All ER 904, [1962] 1 WLR 943; Re Baden's Deed
Trusts (No 2) [1973] Ch 9, [1972] 2 All ER 1304 (cases where 'dependants' was held not so uncertain in meaning as to
invalidate provisions in company trust deeds for the benefit of employees, where there was a power of selection). Cf Re
Leek, Darwen v Leek [1969] 1 Ch 563, [1968] 1 All ER 793, CA (Eng) , where, if it had not been necessary to ascertain
the whole class, the court would have held that a gift to persons who, in the trustees' opinion, had moral claims on a
certain person was certain. The persons who qualify to be a 'dependant' within the Inheritance (Family Provision) Act
1971 (Act 39) is provided for in s 3(1) and if reference to the word 'dependant' within the statute is made in the will, it
should be held to be certain in meaning.
Page 167
[330.189]
Relations
In its primary sense, 'relations'1 extends to relations of every degree of relationship2, however remote,
and, where donees are thus described, this effect is given to the word wherever possible, for example,
where the gift is a power of selection and appointment among relations3, or is to poor relations by way
of perpetual charity. In general, however, this meaning cannot be given to the word in a direct gift to
relations, or in a gift to them under a power of distribution, on account of the uncertainty4 in the number
of persons designated5. In such a case, therefore, the court formerly presumed that the testator
intended his next of kin according to the Statutes of Distribution6, and there is the like presumption now
in favour of the persons, other than husband or wife, entitled on intestacy7.
A gift to 'nearest relations' is confined to those next in blood8. This is so even where a charitable
intention is shown9.
The class of relations is as a rule ascertained as if they were described as next of kin10, and prima facie
they take per capita11 and as joint tenants12.
1 In Gower v Mainwaring (1750) 2 Ves Sen 87 ('friends and relations'), and Re Caplin's Will (1865) 2 Drew & Sm 527
('relations or friends'), the term 'friends' was treated as synonymous with relations, because of the uncertainty of any
other construction. See also Crichton v Grierson (1828) 3 Bli NS 424, HL (where the same assumption was made);
Coogan v Hayden (1879) 4 LR Ir 585 (heir held entitled). Cf Re Baden's Deed Trusts (No 2) [1973] Ch 9, [1972] 2 All ER
1304 (where 'relations' was held certain in meaning in a company trust deed for the benefit of employees with a power of
selection).
2 'Kin' has a similar meaning: see Re Chapman, Ellick v Cox (1883) 49 LT 673 at 674, where 'next male kin' meant next
of kin who were males.
3 Re Poulton's Will Trusts, Smail v Litchfield [1987] 1 All ER 1068, [1987] 1 WLR 795 (testatrix's daughter empowered to
divide estate among her own 'relatives' at her discretion; disposition to cousin's children, who were not statutory next of
kin, was valid).
4 As to uncertainty see [330.122]-[330.126].
5 Brandon v Brandon (1819) 3 Swan 312 at 319.
6 Thomas v Hole (1728) Cas temp Talb 251; Whithorne v Harris (1754) 2 Ves Sen 527; Green v Howard (1779) 1 Bro
CC 31; Rayner v Mowbray (1791) 3 Bro CC 234 (persons 'who shall appear to be related to me'); Masters v Hooper
(1793) 4 Bro CC 207; Devisme v Mellish (1800) 5 Ves 529; Walter v Maunde (1815) 19 Ves 424 (real estate); Cracklow v
Norie (1838) 7 LJ Ch 278; Hibbert v Hibbert (1873) LR 15 Eq 372 (where an illegitimate relative, described in another gift
as if legitimate, was not included). As to the Statutes of Distribution see [330.185].
7 See Re Brigden, Chaytor v Edwin [1938] Ch 205, [1937] 4 All ER 342 ('all my' relatives does not enlarge the class).
8 Smith v Campbell (1815) 19 Ves 400.
9 Edge v Salisbury (1749) Amb 70; Goodinge v Goodinge (1749) 1 Ves Sen 231.
10 See [330.185]. See also Pearce v Vincent (1836) 2 Keen 230; Bishop v Cappel (1847) 1 De G & Sm 411; Eagles v Le
Breton (1873) LR 15 Eq 148; Re Gansloser's Will Trusts, Chartered Bank of India, Australia and China v Chillingworth
[1952] Ch 30, [1951] 2 All ER 936, CA (Eng) . Cf Tiffin v Longman (1855) 18 Beav 275.
11 Thomas v Hole (1728) Cas temp Talb 251; Tiffin v Longman (1855) 18 Beav 275; Re Gansloser's Will Trusts,
Chartered Bank of India, Australia and China v Chillingworth [1952] Ch 30, [1951] 2 All ER 936, CA (Eng) . For a case of
a context to the contrary see Fielden v Ashworth (1875) LR 20 Eq 410.
12 Eagles v Le Breton (1873) LR 15 Eq 148; Re Gansloser's Will Trusts, Chartered Bank of India, Australia and China v
Chillingworth [1952] Ch 30, [1951] 2 All ER 936, CA (Eng) . See also Re Kilvert, Midland Bank Executor and Trustee Co
Ltd v Kilvert [1957] Ch 388, [1957] 2 All ER 196.
Page 168
[330.190]
Relations through illegitimacy generally not included in gift
A description of a donee by reference to relationship to the testator or other person (as in gifts to
children, issue and the like) prima facie refers only to legitimate children1 and their descendants, and
does not include illegitimate children and their descendants2. This rule applies to all descriptions of
donees, including the children3, nephews4, nieces5 or relations generally6 of the person concerned. A
person born illegitimate who is subsequently legitimated by the marriage of his parents7 is, from the
date of legitimation, entitled to take an interest under a disposition by will coming thereafter into
operation8 in the same way as if he had been born legitimate9. A person born illegitimate but
subsequently legitimated is not, however, legitimate for the purposes of the will of a testator who was
dead before the date of legitimation10.
The ordinary meaning of 'illegitimate' is adhered to11, and relations through illegitimacy do not satisfy a
description by reference to relationship12 unless either, from the circumstances at the date of the will13,
it is impossible that any legitimate relation could satisfy it14, or there appears in the will an intention to
include relations through illegitimacy15. The question of legitimacy is in all cases decided according to
the law of the domicile of the person by reference to whom the relationship of the donees is described,
whether the gift is a bequest of personalty16, a specific devise of real estate17 or a devise of land upon
trust to sell and to apply the proceeds of sale as personalty18.
1 As to the rights of legitimated persons see text and notes 6-11 below.
2 Cartwright v Vawdry (1800) 5 Ves 530; Wilkinson v Adam (1813) 1 Ves & B 422 at 462; Warner v Warner (1850) 15 Jur
141; Hill v Crook (1873) LR 6 HL 265 at 283; Dorin v Dorin (1875) LR 7 HL 568; Re Ayles' Trusts (1875) 1 Ch D 282;
Ellis v Houstoun (1878) 10 Ch D 236 at 241; Re Eve, Edwards v Burns [1909] 1 Ch 796 at 800. See also Re Fish,
Ingham v Rayner [1894] 2 Ch 83, CA (Eng) ('niece'; legitimate grand-niece preferred to illegitimate grand-niece, where
she sufficiently answered the description); Re Deakin, Starkey v Eyres [1894] 3 Ch 565 (power to appoint to 'relations');
Re Pearce, Alliance Assurance Co Ltd v Francis [1914] 1 Ch 254, CA (Eng) (no exception to the rule where the testator
wrongly believes the donees to be legitimate) (overruling Re Du Bochet, Mansell v Allen [1901] 2 Ch 441). In Smith v
Jobson (1888) 59 LT 397, it was held that a share given to an illegitimate daughter went over with a clause providing for
the death of 'any of my children'.
3 Swaine v Kennerley (1813) 1 Ves & B 469; Re Wells' Estate (1868) LR 6 Eq 599; Hill v Crook (1873) LR 6 HL 265;
Dorin v Dorin (1875) LR 7 HL 568 at 574 per Lord Hatherley ; Re Pearce, Alliance Assurance Co Ltd v Francis [1914] 1
Ch 254, CA (Eng) ; Re Hall, Hall v Hall [1932] 1 Ch 262; Re Dicker [1947] Ch 248, [1947] 1 All ER 317.
4 Re Jackson, Beattie v Murphy [1933] Ch 237 at 241.
5 Re Fish, Ingham v Rayner [1894] 2 Ch 83, CA (Eng) , distinguishing Re Jackson, Beattie v Murphy [1933] Ch 237.
6 Re Deakin, Starkey v Eyres [1894] 3 Ch 565 at 572; Sydall v Castings Ltd [1967] 1 QB 302, [1966] 3 All ER 770, CA
(Eng) (descendant).
7 See the Legitimacy Act 1961 (Act 60) s 5. See also [330.196].
8 As to testamentary gifts to legitimated children see [330.196].
9 See the Legitimacy Act 1961 ss 6, 7. As to the status of adopted children see the Adoption Act 1952 (Act 257) s 9; and
FAMILY LAW (2013 Reissue) [390.021] and following. See also [330.195].
10 Re Hepworth, Rastall v Hepworth [1936] Ch 750, [1936] 2 All ER 1159. See also [330.196].
11 No mere conjecture, however probable, based on the testator's knowledge of or intimacy with the illegitimate persons
can exclude the rule: Hill v Crook (1873) LR 6 HL 265 at 276; Re Pearce, Alliance Assurance Co Ltd v Francis [1914] 1
Ch 254, CA (Eng) (overruling Re Du Bochet, Mansell v Allen [1901] 2 Ch 441).
12 There is, however, no rule that illegitimate children cannot in any circumstances participate with legitimate children in
the benefit of a gift to children generally: Owen v Bryant (1852) 2 De GM & G 697. See also Evans v Davies (1849) 18 LJ
Ch 180; Hill v Crook (1873) LR 6 HL 265; Ebbern v Fowler [1909] 1 Ch 578, CA (Eng) ; Re Pearce, Alliance Insurance
Co Ltd v Francis [1914] 1 Ch 254 at 267, CA (Eng) .
13 If the circumstances at the date of the will show an intention to include illegitimate children, the construction is not
varied by subsequent events, such as the circumstances existing at the date of a confirmatory codicil: Wilkinson v Adam
Page 169
(1823) 12 Price 470, HL . Ambiguity as to the legitimate relations may, however, make extrinsic evidence admissible as
to the family and as to the person intended: Re Jackson, Beattie v Murphy [1933] Ch 237.
14 See [330.192].
15 See [330.192], [330.193].
16 Re Andros, Andros v Andros (1883) 24 Ch D 637; Re Bischoffsheim, Cassel v Grant [1948] Ch 79, [1947] 2 All ER
830.
17 Re Grey's Trusts, Grey v Stamford [1892] 3 Ch 88.
18 See Skottowe v Young (1871) LR 11 Eq 474 (legacy duty), discussed in Re Goodman's Trusts (1881) 17 Ch D 266,
CA (Eng) .
[330.191]
Effect of absence of legitimate relations
If there were no legitimate relations answering the description in existence at the date of a will, the
testator must be presumed to have contemplated the relations through illegitimacy answering the
description and being able to take under an immediate gift1. There is, however, no such inference
where, although there were no legitimate relations in existence at the date of the will, the testator may
have contemplated such relations coming into existence in the future2. The impossibility of legitimate
children coming into existence when a woman is past child-bearing may be sufficient to include
illegitimate children in the case of an immediate gift3. Similarly, the incapacity of a man to beget
children may enable illegitimate children to take4.
1 Hill v Crook (1873) LR 6 HL 265 at 282; Dorin v Dorin (1875) LR 7 HL 568 at 573, 575. See also Beachcroft v
Beachcroft (1816) 1 Madd 430; Lord Woodhouselee v Dalrymple (1817) 2 Mer 419 (children of a deceased person);
Dilley v Matthews (1865) 11 Jur NS 425; Savage v Robertson (1868) LR 7 Eq 176 (description of mother by her maiden
name); Laker v Hordern (1876) 1 Ch D 644; Re Haseldine, Grange v Sturdy (1886) 31 Ch D 511, CA (Eng) ; Re Frogley
[1905] P 137; O'Loughlin v Bellew [1906] 1 IR 487.
2 Dorin v Dorin (1875) LR 7 HL 568. See also Dover v Alexander (1843) 2 Hare 275; Durrant v Friend (1852) 5 De G &
Sm 343; Re Brown, Penrose v Manning (1890) 63 LT 159 (approved in Re Pearce, Alliance Assurance Co Ltd v Francis
[1914] 1 Ch 254, CA (Eng) ); Re Dieppe, Millard v Dieppe (1915) 138 LT Jo 564.
3 Re Eve, Edwards v Burns [1909] 1 Ch 796 (immediate gift: existing illegitimate children held entitled). Cf Paul v
Children (1871) LR 12 Eq 16 (future gift to her child or children: existing illegitimate children not entitled); Re Brown,
Penrose v Manning (1890) 63 LT 159 (woman 50 years of age, but her illegitimate children excluded).
4 Re Wohlgemuth, Public Trustee v Wohlgemuth [1949] Ch 12, [1948] 2 All ER 882, where evidence was admitted to
prove the father's incapacity at the date of the will; Re Herwin, Herwin v Herwin [1953] Ch 701, [1953] 2 All ER 782, CA
(Eng) , where fresh evidence of the father's impotence was allowed on appeal.
[330.192]
Indications that illegitimate persons are included
In a will the testator may show his intention to include illegitimate children and their descendants in a
description by referring to them, or to relations of theirs, elsewhere in his will in terms showing that he
treats them as legitimate1, particularly where it is apparent that the testator knew of the illegitimacy and
therefore, could not be using his language in its ordinary sense2. The existence of such an intention
may, however, be rebutted by a special and distinct provision for the relations through illegitimacy, or
other similar indications that the testator drew a distinction between them and the legitimate relations3.
Moreover, indications that other illegitimate persons are treated as legitimate are not enough4, and may
Page 170
even be the ground of the inference against an illegitimate person who claims to be included5. Where
the testator uses a word in the plural (such as 'children') when to his knowledge there is only a single
legitimate person who could take under the gift, an illegitimate child may be included so as to make
sense of the description6, but the use of a plural word is not sufficient to include illegitimate persons if
there are legitimate persons sufficient to satisfy the description in its ordinary sense and there are no
other indications of an intention to include illegitimate persons7, or if, supposing them to be included,
the words of the will would still remain unsatisfied8.
It appears that there is no hard and fast rule of construction that the mere description of a person as a
relation in an earlier part of a will shows that that person is included in a general description of relations
in a later part of the will, but that in all such cases the context of the will and the evidence properly
admissible must be considered9.
1 Eg where the parents are spoken of in the will as husband and wife, or the illegitimate person is mentioned as 'son',
'daughter' or 'child' of his or her natural parent, or is otherwise considered as having relations (who in the strict legal
sense could not exist) in such a way as impliedly to include the illegitimate person in the description in question: Hill v
Crook (1873) LR 6 HL 265 at 285. See also Meredith v Farr (1843) 2 Y & C Ch Cas 525; Worts v Cubitt (1854) 19 Beav
421; Clifton v Goodbun (1868) LR 6 Eq 278; Holt v Sindrey (1868) LR 7 Eq 170 (as explained in Re Pearce, Alliance
Assurance Co Ltd v Francis [1913] 2 Ch 674 at 687; affd [1914] 1 Ch 254, CA (Eng) ); Savage v Robertson (1868) LR 7
Eq 176; Lepine v Bean (1870) LR 10 Eq 160; Re Humphries, Smith v Millidge (1883) 24 Ch D 691; Re Bryon, Drummond
v Leigh (1885) 30 Ch D 110; Re Horner, Eagleton v Horner (1887) 37 Ch D 695; Re Hastie's Trusts (1887) 35 Ch D 728;
Seale-Hayne v Jodrell [1891] AC 304, HL , where illegitimate persons previously described as 'cousins' were entitled to
take under a gift to 'relatives hereinbefore named'; Re Harrison, Harrison v Higson [1894] 1 Ch 561; Re Walker, Walker v
Lutyens [1897] 2 Ch 238; Re Plant, Griffith v Hill (1898) 47 WR 183; Re Wood, Wood v Wood [1902] 2 Ch 542, CA (Eng)
; Re Smilter, Bedford v Hughes [1903] 1 Ch 198; Re Kiddle, Gent v Kiddle (1905) 92 LT 724; Re Corsellis, Freeborn v
Napper [1906] 2 Ch 316; Re Helliwell, Pickles v Helliwell [1916] 2 Ch 580, where nephews and nieces and their children
were held to include legitimate descendants of the testator's natural sister; Re B, O v D [1916] 1 IR 364, where 'children'
was held to include an illegitimate child described as 'my daughter' elsewhere in the will; Re Bleckley, Sidebotham v
Bleckley [1920] 1 Ch 450 at 460-461. Such indications were not considered conclusive in Bagley v Mollard (1830) 1 Russ
& M 581; Megson v Hindle (1880) 15 Ch D 198, CA (Eng) , where there were other indications, as to which see the text
and note 4 below; Re Humphries, Smith v Millidge (above) at 696 per North J , where a reference to 'shares' of
daughters was meaningless unless the illegitimate child took; Re Hall, Branston v Weightman (1887) 35 Ch D 551,
where the description as 'nephew' was not sufficient to include the person in a gift to the testator's sister's children. As to
these cases see Re Parker, Parker v Osborne [1897] 2 Ch 208 at 211 and following; Re Walker, Walker v Lutyens
(above) at 242. Re Hall, Branston v Weightman (above) was followed in Re Dicker [1947] Ch 248, [1947] 1 All ER 317,
where a reference to 'my nephew' in one clause did not entitle him to take as a 'child' in another clause.
2 As to the importance of showing what knowledge the testator had of the facts giving rise to the illegitimacy see Re
Herbert's Trusts (1860) 1 John & H 121 at 124; Hill v Crook (1873) LR 6 HL 265 at 277, 283; Re Horner, Eagleton v
Horner (1887) 37 Ch D 695 at 707; Re Cullum, Mercer v Flood [1924] 1 Ch 540 ('right heirs'; no evidence that testatrix
knew of her illegitimacy); Re Taylor, Hockley v O'Neal [1925] Ch 739 (ignorance of illegitimacy). The testator's
knowledge of the illegitimacy is not material where his words make sense in their ordinary meaning: see Godfrey v Davis
(1801) 6 Ves 43 at 48; Warner v Warner (1850) 15 Jur 141 at 142 per Knight Bruce V-C . The testator's ignorance of the
illegitimacy and his belief that the parents of the illegitimate person were married may negative the inference that that
person was intended to take: Re Pearce, Alliance Assurance Co Ltd v Francis [1914] 1 Ch 254 at 263, CA (Eng) . A gift
by an unmarried person to his or her own children takes effect (apart from the question of revival after marriage) in favour
of illegitimate children: Clifton v Goodbun (1868) LR 6 Eq 278. As to the revocation of a will by marriage see [330.037]
and following, and as to revival see [330.043] and following.
3 Megson v Hindle (1880) 15 Ch D 198, CA (Eng) ; Re Hall, Branston v Weightman (1887) 35 Ch D 551 at 557.
4 Mortimer v West (1827) 3 Russ 370; Re Wells' Estate (1868) LR 6 Eq 599; Re Warden, Midland Bank Executor and
Trustee Co Ltd v Warden (1962) Times 12 December (cases of particular children being mentioned and treated as
'children': no inference in favour of illegitimate child not expressly mentioned).
5 Kelly v Hammond (1858) 26 Beav 36.
6 Gill v Shelley (1831) 2 Russ & M 336; Leigh v Byron (1853) 1 Sm & G 486; Tugwell v Scott (1857) 24 Beav 141; Re
Embury, Bowyer v Page (No 2) [1914] WN 220.
7 Edmunds v Fessey (1861) 29 Beav 233.
8 Hart v Durand (1796) 3 Anst 684. The fact that the property is divided by the testator into a number of shares
corresponding with the whole number of legitimate or illegitimate claimants was considered not a sufficient indication in
Cartwright v Vawdry (1800) 5 Ves 530; Re Wells' Estate (1868) LR 6 Eq 599.
9 Re Cozens, Miles v Wilson [1903] 1 Ch 138 at 142-143 (following Re Jodrell, Jodrell v Seale (1890) 44 Ch D 590, CA
Page 171
(Eng) ; affd sub nom Seale-Hayne v Jodrell [1891] AC 304, HL ).
[330.193]
Gifts to illegitimate children of a named person
Where a gift in a will is to the children of a named person1, or the children of a named man by a certain
woman2, and is such that in the circumstances existing illegitimate children are denoted, the gift is
construed as referring to those who at the date of the will have acquired the reputation3 of being the
named person's children.
1 Laker v Hordern (1876) 1 Ch D 644 at 650.
2 Wilkinson v Adam (1813) 1 Ves & B 422; affd (1823) 12 Price 470, HL .
3 For the meaning of 'reputation' for this purpose see [330.194] note 9.
[330.194]
Future illegitimate children
Although, in a will a gift to a sufficiently designated illegitimate child who was alive1 or en ventre sa m
re2 at the date of the will, or is alive3 or en ventre sa m re4 at the date of the testator's death, is valid5, it
is a rule of law grounded on public policy that gifts could not be made by will to illegitimate children not
born or begotten at the testator's death by a description expressly or impliedly referring to them as
such6. The fact that all the intended donees, including those excluded by this rule, were to take as a
class does not prevent the gift from taking effect in favour of those who are not excluded7.
Further, in a will there cannot be a valid gift to an illegitimate child not alive at the date of the will, and
described only by reference to the fact of its paternity, as the law does not in such a case permit an
inquiry as to paternity8. Where, however, the child is described expressly or impliedly by reference to
the reputation of its paternity (as in the case of a gift to the children whom a particular woman is
reputed to have by a particular man), the gift is valid so long as the child in question has acquired the
reputation9 of that paternity at the testator's death10. In the case of a gift to the future illegitimate
children of a woman, without further description, there is no difficulty of proof but the gift is subject to
the rule that only children born or begotten at the testator's death may take11.
1 See Metham v Duke of Devon (1718) 1 P Wms 529; Barneto v Tugwell (1862) 31 Beav 232; Bentley v Blizard (1858) 4
Jur NS 652. Thus, illegitimate children living at the date of the will may take under a gift to children 'legitimate or
otherwise' (Howarth v Mills (1866) LR 2 Eq 389), or to 'the children of A by her putative husband or any other person she
might marry' (Re Brown's Trust (1873) LR 16 Eq 239). It is sufficient if the children are referred to by name: Rivers' Case
(1737) 1 Atk 410; Re B, O v D [1916] 1 IR 364.
2 Gordon v Gordon (1816) 1 Mer 141; Evans v Massey (1819) 8 Price 22 (cases of express gifts to child of whom a
woman was pregnant); Occleston v Fullalove (1874) 9 Ch App 147 (gift to children of woman which should be reputed to
be testator's); Re Loveland, Loveland v Loveland [1906] 1 Ch 542 (gift to children of a woman living at the testator's
death). Cf Metham v Duke of Devon (1718) 1 P Wms 529. As to the rights of a person en ventre sa m re see generally
[330.197].
3 Occleston v Fullalove (1874) 9 Ch App 147 (overruling on this point Medworth v Pope (1859) 27 Beav 71; Howarth v
Mills (1866) LR 2 Eq 389); Perkins v Goodwin [1877] WN 111.
4 Crook v Hill (1876) 3 Ch D 773. It has been said that such a child may acquire the reputation of a certain paternity: Re
Connor (1845) 2 Jo & Lat 456 at 460 per Sugden LC ; Pratt v Mathew (1856) 22 Beav 328 at 339 per Romilly MR . Cf
Occleston v Fullalove (1874) 9 Ch App 147 at 153 per Lord Selborne LC, at 158 per James LJ, and at 169 per Mellish LJ
Page 172
; Re Bolton, Brown v Bolton (1886) 31 Ch D 542 at 549, 553, CA (Eng), per Fry LJ , where the child was considered to
be described by reference to the fact of paternity, and therefore could not take.
5 See Re Loveland, Loveland v Loveland [1906] 1 Ch 542 at 548 per Swinfen Eady J ; O'Loughlin v Bellew [1906] 1 IR
487 at 493.
6 Hill v Crook (1873) LR 6 HL 265 at 278, 280; Crook v Hill (1876) 3 Ch D 773; Holt v Sindrey (1868) LR 7 Eq 170.
7 Holt v Sindrey (1868) as reported in 38 LJ Ch 126; Hill v Crook (1873) LR 6 HL 265 at 278; Crook v Hill (1876) 3 Ch D
773.
8 Re Bolton, Brown v Bolton (1886) 31 Ch D 542, CA (Eng) ; Re Du Bochet, Mansell v Allen [1901] 2 Ch 441 (overruled,
but on the question of construction only, in Re Pearce, Alliance Assurance Co Ltd v Francis [1914] 1 Ch 254, CA (Eng) ;
Re Homer, Cowlishaw v Rendell (1916) 86 LJ Ch 324. A child en ventre sa m re is excluded where the description refers
to the paternity: Earle v Wilson (1811) 17 Ves 528; Pratt v Mathew (1856) 22 Beav 328. See also Re Homer, Cowlishaw
v Rendell (1916) 86 LJ Ch 324.
9 'Reputation' in such cases, it appears, means not that of rumour or fame spread by gossip, but that which springs from
acknowledgment, conduct and life: Occleston v Fullalove (1874) 9 Ch App 147 at 164. A power for the donee to appoint
to his reputed children is valid: Re Hyde, Smith v Jack [1932] 1 Ch 95.
10 Metham v Duke of Devon (1718) 1 P Wms 529; Occleston v Fullalove (1874) 9 Ch App 147. Evidence may be
admitted only for the purpose of ascertaining who had acquired such reputation: Wilkinson v Adam (1813) 1 Ves & B 442
at 466-467 (affd (1823) 12 Price 470, HL ); Swaine v Kennerley (1813) 1 Ves & B 469.
11 Re Hastie's Trusts (1887) 35 Ch D 728; Re Loveland, Loveland v Loveland [1906] 1 Ch 542.
[330.195]
Dispositions in favour of adopted children
The law of adoption is now wholly governed by the Adoption Act 19521 and since then, there has been
no scope for any new Chinese customary adoptions. The property rights and entitlements of adopted
children are now set out in the provisions of the Act2.
Where, at any time after the making of an adoption order, the adopter3 or the adopted child4 or any
other person dies intestate in respect of any movable or immovable property, that property devolves in
all respects as if the adopted child were the child5 of the adopter born in lawful wedlock and were not
the child of any other person6.
In any disposition of movable or immovable property made, whether by instrument inter vivos or by will
(including codicil), after the date of an adoption order, any reference (whether express or implied):
(1) to the child or children of the adopter is, unless the contrary intention appears, to be
construed as, or as including, a reference to the adopted child7;
(2) to the child or children of the adopted child's natural parents or either of them is, unless
the contrary intention appears, to be construed as not being, or as not including, a
reference to the adopted child8;
(3) to a person related to the adopted child in any degree is, unless the contrary intention
appears, to be construed as a reference to the person who would be related to him in that
degree if he were the child of the adopter born in lawful wedlock and were not the child of
any other person9.
Further, notwithstanding anything in these general provisions, trustees or personal representatives may
convey or distribute any property to or among the persons entitled to it without having ascertained that
no adoption order has been made by virtue of which any person is or may be entitled to any interest,
and are not liable to any such person of whose claim they have not had notice at the time of the
conveyance or distribution; but this does not prejudice the right of any such person to follow the
Page 173
property, or any property representing it, into the hands of any person, other than a purchaser, who
may have received it10.
Where an adoption order is made in respect of a person who has been previously adopted, the
previous adoption is disregarded for the purposes of these general provisions11 in relation to the
devolution of any property on the death of a person dying intestate after the date of the subsequent
adoption order and in relation to any disposition of property made after that date12.
1 Ie the Adoption Act 1952 (Act 257). As to adoption see generally FAMILY LAW (2013 Reissue) [390.002] and following.
2 Ie the Adoption Act 1952 s 9.
3 'Adopter' means a person authorised by an adoption order to adopt a child: Adoption Act 1952 s 2.
4 'Adopted child' means a child who has been authorised by the court to be adopted or re-adopted: Adoption Act 1952 s
2.
5 'Child' means an unmarried person under the age of 21 and includes a female under that age who has been divorced:
Adoption Act 1952 s 2.
6 Adoption Act 1952 s 9(2).
7 Adoption Act 1952 s 9(3)(a).
8 Adoption Act 1952 s 9(3)(b).
9 Adoption Act 1952 s 9(3)(c).
11 Ie the provisions of the Adoption Act 1952 s 9.
12 Adoption Act 1952 s 9(6). As to adoption orders see FAMILY LAW (2013 Reissue) [390.012]-[390.027].
[330.196]
The status and property rights of legitimated persons
The entitlements of legitimated persons1 to take interests in property are defined in the Legitimacy Act
19612.
Subject to the provisions of the Act, a legitimated person and his spouse, children or remoter issue are
entitled to take any interest:
(1) in the estate of an intestate3 dying after the date of legitimation4; and
(2) under any disposition coming into operation after the date of legitimation,
in like manner as if the legitimated person had been born legitimate5.
Where the right to any property depends on the relative seniority of the children of any person, and
those children include one or more legitimated persons, the legitimated person or persons will rank as if
he or they had been born on the day when he or they became legitimated by virtue of the Act, and if
more than one such legitimated person became legitimated at the same time, they will rank as between
themselves in order of seniority6.
These provisions apply only if and so far as a contrary intention is not expressed in the disposition, and
will have effect subject to the terms of the disposition and to the provisions contained in it7.
With regard to the succession on intestacy of legitimated persons and their issue, where a legitimated
person or a child or remoter issue of a legitimated person dies intestate in respect of all or any of his
Page 174
property, the same persons will be entitled to take the same interests therein as they would have been
entitled to take if the legitimated person had been born legitimate8.
Nothing in the Act affects the operation or construction of any disposition coming into operation before
the prescribed date9, or affect any rights under the intestacy of a person dying before that date10.
1 'Legitimated person' means a person legitimated by the Legitimacy Act 1961 (Act 60) or by any of the written laws
repealed by this Act, that is to say: (1) the Legitimacy Enactment of the Federated Malay States (Cap 69); (2) the
Legitimacy Enactment of the State of Johore (Enactment 19 of 1936); and (3) the Legitimacy Ordinance of the Straits
Settlements (Cap 85): Legitimacy Act 1961 s 2(1).
2 Ie the Legitimacy Act 1961 ss 6, 7. As to legitimacy see FAMILY LAW (2013 Reissue) [390.193] and following.
3 'Intestate' includes a person who leaves a will but dies intestate as to some beneficial interest in his estate: Legitimacy
Act 1961 s 2(1).
4 'Date of legitimation' means the date of the marriage leading to the legitimation or, where the marriage occurred before
the prescribed date, the prescribed date: Legitimacy Act 1961 s 2(1).
5 Legitimacy Act 1961 s 6(1).
8 Legitimacy Act 1961 s 7.
9 The prescribed date is defined in the Legitimacy Act 1961 s 2(1) and it is different for the various States of Malaysia.
10 Legitimacy Act 1961 s 12.
[330.197]
Circumstances in which person not yet born is treated as born
Words referring to children or issue 'born' before or 'living' at or 'surviving' a particular point of time or
event do not in their ordinary or natural meaning include a child en ventre sa m re at the relevant date1.
It has, however, been adopted as a rule of construction2 for giving effect to a presumed intention3 that,
in a gift or condition referring to persons of named relationship to the testator or other propositus who
are born at or living at a particular time4, the description includes a person who is then en ventre sa m
re and is afterwards born alive and would have come under the description if he had been then actually
born or living, provided that this construction is for the benefit of the unborn person5, and, it seems,
provided that there is no context in the will negativing the presumed intention6. The rule is commonly
stated with respect to gifts to children7; but it also applies to other descriptions of relatives of the
propositus8, and to descriptions of persons in conditions as well as in gifts9. In order, however, to be
capable of taking under this rule, the person must be capable of having been begotten, and legitimately
begotten, before the period of distribution10. The rule has been applied in relation to an interest
appointed in exercise of a power11.
1 See Elliot v Lord Joicey [1935] AC 209 at 233, HL .
2 In Re Watson, Culme-Seymour v Brand [1930] 2 Ch 344, 'within due time after my death' was held to refer to the
period of gestation. In the Distribution Act 1958 (Act 300), references to a child or issue living at the death of any person
include a child or issue en ventre sa m re at the death: s 5.
3 Clarke v Blake (1788) 2 Bro CC 319 at 320 per Lord Thurlow LC ; Trower v Butts (1823) 1 Sim & St 181 at 184 per
Leach V-C . The only justification for such a fictional construction is that, where a person makes a gift to a class of
children or issue described as 'born' before or 'living' at or 'surviving' a particular point of time or event, a child en ventre
sa m re at the time must necessarily be within the reason and motive of the gift: Elliot v Lord Joicey [1935] AC 209 at
233-234, HL, per Lord Russell of Killowen . This construction is not confined to class gifts: Re Stern's Will Trusts, Bartlett
Page 175
v Stern [1962] Ch 732 at 735, [1961] 3 All ER 1129 at 1132.
4 The qualification 'born at' or 'living at' the particular time may be expressly made by the words of the will, or impliedly
made under the rules for the ascertainment of the class. Thus, the rule applies where the gift is to 'children' simply, where
the class is ascertained during the gestation of the unborn person: Northey v Strange (1716) 1 P Wms 340 at 342, where
the gift was to children and grandchildren, and a grandchild en ventre sa m re at the testator's death was held not entitled
to take. Cf Storrs v Benbow (1833) 2 My & K 46 (revsd on appeal (1853) 3 De GM & G 390), where the gift was 'to each
child that may be born' to certain persons; Mogg v Mogg (1815) 1 Mer 654; Re Hallett, Hallett v Hallett [1892] WN 148.
5 Villar v Sir Walter Gilbey [1907] AC 139, HL , where the rule was not applied to a condition reducing the interest of a
tenant in tail to a life estate; Elliot v Lord Joicey [1935] AC 209, HL , where the rule was not applied where the result
would have been to benefit the parent's estate and not the child directly. See also Trower v Butts (1823) 1 Sim & St 181;
Blasson v Blasson (1864) 2 De GJ & Sm 665, where the words in question were used for the purpose only of
ascertaining a period of time; Pearce v Carrington (1873) 8 Ch App 969, where the benefit was that the divesting of the
unborn person's interest under another clause was prevented. In Blasson v Blasson (1864) 2 De GJ & Sm 665 at 670,
Lord Westbury LC said that the rule applied only for the purpose of enabling the unborn child to take a benefit to which, if
born, the child would be entitled.
6 It seems that the context of the will, as applied to the circumstances, may show that by the description in the will the
testator meant to describe persons actually known to him (see Millar v Turner (1748) 1 Ves Sen 85 at 86 per Lord
Hardwicke LC ), or that he had no thought of the child en ventre sa m re as an immediate recipient of his bounty (see
Roper v Roper (1867) LR 3 CP 32 at 35; Re Emery's Estate, Jones v Emery (1876) 3 Ch D 300).
7 Hale v Hale (1692) Prec Ch 50; Clarke v Blake (1788) 2 Bro CC 319 (on appeal (1795) 2 Ves 673); Doe d Clarke v
Clarke (1795) 2 Hy Bl 399; Rawlins v Rawlins (1796) 2 Cox Eq Cas 425; Whitelock v Heddon (1798) 1 Bos & P 243 ('to
any son begotten and born' at a certain time); Trower v Butts (1823) 1 Sim & St 181; Re Salaman, De Pass v Sonnenthal
[1908] 1 Ch 4 at 6, 8, CA (Eng) .
8 Storrs v Benbow (1853) 3 De GM & G 390; Re Salaman, De Pass v Sonnenthal [1908] 1 Ch 4, CA (Eng)
(great-nephews and great-nieces); Re Hallett, Hallett v Hallett [1892] WN 148. In Bennett v Honywood (1772) Amb 708
at 712, the court declined to extend the rule to a gift to 'relations by consanguinity'.
9 Burder v Hopegood (1718) 1 P Wms 486 (devise in case testator had no son at the time of his death); Pearce v
Carrington (1873) 8 Ch App 969 (if daughter should be living five years after death of wife and should not then have had
any child or children). In Villar v Sir Walter Gilbey [1907] AC 139, HL , also a case of a condition, the rule was excluded
on the ground of want of benefit.
10 Re Corlass (1875) 1 Ch D 460, where one of the testator's daughters was pregnant, although unmarried, at the date
of distribution but married before the child was born, thus rendering it legitimate; but as this was not its status at the date
of distribution, the child did not take.
11 Re Stern's Will Trusts, Bartlett v Stern [1962] Ch 732, [1961] 3 All ER 1129 (appointment, under power contained in
will, to any widow of W born in testator's lifetime; widow en ventre sa m re at testator's death entitled as being within
reason and motive of testator's gift).
Page 176
Take/ (ii) Identification of Donees/ (B) Identification by Reference to Office or Employment
(B) Identification by Reference to Office or Employment
[330.198]
Gifts to executors or trustees
Where any property is given by a testator to his trustee or executor, such gift is construed to pass the
fee simple or other the right to the whole estate or interest in such property which the testator had
power to dispose of by will, unless a lesser interest in such property is thereby given to him expressly or
by implication1. However, where any property is given to a trustee without any express limitation of the
estate to be taken by such trustee, and the beneficial interest in such property, or in the surplus rents
and profits thereof, will not be given to any person for life, or such beneficial interest will be given to any
person for life, but the purposes of the trust may continue beyond the life of such person. Such devise
or bequest will be construed to vest in or pass to such trustee the fee simple, or other the right to the
whole legal estate or interest in such property which the testator had power to dispose of by will, and
not an estate determinable when the purposes of the trust is satisfied2.
The presumption is that a legacy to a person appointed executor is given to him in that character and is
attached to the office and if he claims it otherwise, it is on him to show something in the nature of the
legacy, or other circumstances arising on the will, to repel that presumption3, if he does not act as
executor and yet claims the legacy4. Where in the gift the testator has designated the executor-legatee
as a friend5 or as a relation6, or where the legacy is expressed to be given as a mark of respect7 or as
a remembrance8, the presumption is rebutted. It is also rebutted where the legacy is one of residue9, or
is given to the executor after the death of the tenant for life under the will10; but a difference either in
the nature or amount of the legacy given to one executor as compared with those given to other
executors is not as a general rule of itself sufficient to show that the gift is not attached to the office11.
If a gift is made to an executor to be disposed of in accordance with a separate memorandum, but not
so as to create any trust, the question whether the executor takes absolutely and beneficially is one of
construction12.
1 Wills Act 1959 (Act 346) s 23 (which is equivalent to the English Wills Act 1837 s 30). For the meaning of 'property' see
[330.001] note 2 and for the meaning of 'will' see [330.001].
2 Wills Act 1959 s 24 (which is equivalent to the English Wills Act 1837 s 31).
3 Williams and Mortimer on Executors 31, approved in Re Appleton, Barber v Tebbit (1885) 29 Ch D 893 at 895, CA
(Eng) where Cotton LJ added that he thought parol evidence was admissible to rebut the presumption, but Fry LJ at 898
expressly abstained from concurring in that view. In the cases of Piggott v Green (1833) 6 Sim 72 and Calvert v Sebbon
(1841) 4 Beav 222 the legacy was held to be annexed to the office. In Wildes v Davies (1853) 22 LJ Ch 495; Brand v
Chaddock (1871) 24 LT 347; and Re Bunbury's Trusts (1876) 10 IR Eq 408, where the legacy was held to be not so
attached. A request that a handsome gratuity should be given to the executor is void for uncertainty: Jubber v Jubber
(1839) 9 Sim 503.
4 Re Appleton, Barber v Tebbit (1885) 29 Ch D 893, CA (Eng) ; Piggott v Green (1833) 6 Sim 72; Calvert v Sebbon
(1841) 4 Beav 222; Wildes v Davies (1853) 22 LJ Ch 495; Brand v Chaddock (1871) 24 LT 347; Re Bunbury's Trusts
(1876) 10 IR Eq 408.
5 Re Denby (1861) 3 De GF & J 350. It is easier to infer an intention that a sole trustee will take than that two or more
trustees will do so: Re Pugh's Will Trusts, Marten v Pugh [1967] 3 All ER 337 at 341, [1967] 1 WLR 1262 at 1267.
6 Compton v Bloxham (1845) 2 Coll 201 at 203; Dix v Reed (1823) 1 Sim & St 237.
7 Burgess v Burgess (1844) 1 Coll 367.

Page 177
8 Bubb v Yelverton (1871) LR 13 Eq 131.
9 Re Maxwell, Eivers v Curry [1906] 1 IR 386, CA (Eng) , following Griffiths v Pruen (1840) 11 Sim 202.
10 Re Reeve's Trusts (1877) 4 Ch D 841.
11 Re Appleton, Barber v Tebbit (1885) 29 Ch D 893 at 896, CA (Eng), per Cotton LJ , commenting upon Jewis v
Lawrence (1869) LR 8 Eq 345.
12 Re Stirling, Union Bank of Scotland Ltd v Stirling [1954] 2 All ER 113, [1954] 1 WLR 763. If the executor is a solicitor
who has prepared the will there must be a strong presumption against his taking beneficially: Re Rees, Williams v
Hopkins [1950] Ch 204, [1949] 2 All ER 1003, CA (Eng) ; Re Pugh's Will Trusts, Marten v Pugh [1967] 3 All ER 337,
[1967] 1 WLR 1262.
[330.199]
When executor is entitled to a legacy
Where a legacy is attached to the office, an executor who does not act is not entitled to the benefit1,
even though he is prevented from acting by age or infirmity2. It is sufficient if the executor has in fact
done something showing an intention to act as executor, even though he has not proved the will3; and
where an executor who has proved the will and acted in the administration of the estate renounces the
trusteeship after administration, he is nevertheless entitled to a legacy given on condition that he
proves the will and accepts the trusteeship4. An annuity given to an executor for his trouble does not
cease by reason of the institution of administration proceedings5.
A legacy to an executor, although attached to the office, stands upon the same footing as ordinary
legacies; it was subject to legacy duty6 before that duty was abolished, and is liable to abatements7.
1 Abbot v Massie (1796) 3 Ves 148 at 149; Slaney v Watney (1866) LR 2 Eq 418. Where the legacy is attached to the
office, a revocation by codicil of the appointment of the executor also revokes the legacy: Re Russell, Public Trustee v
Campbell (1912) 46 Sol Jo 651.
2 Hanbury v Spooner (1843) 5 Beav 630; Re Hawkin's Trusts (1864) 33 Beav 570.
3 Harrison v Rowley (1798) 4 Ves 212; Lewis v Mathews (1869) LR 8 Eq 277. Conversely, an executor who proves
without any intention of acting may be disallowed the legacy: Harford v Browning (1787) 1 Cox Eq Cas 302.
4 Re Sharman's Will Trusts, Public Trustee v Sharman [1942] Ch 311, [1942] 2 All ER 74.
5 Baker v Martin (1836) 8 Sim 25.
6 Re Thorley, Thorley v Massam [1981] 2 Ch 613, CA (Eng) .
7 Fretwell v Stacy (1702) 2 Vern 434; Duncan v Watts (1852) 16 Beav 204; Debney v Eckett (1858) 4 Jur NS 805.
[330.200]
Gifts to servants or employees
Gifts to the testator's 'servants' or other donees described by their employment1 and not by name,
taking as individuals, prima facie refer to persons filling the character at the date of the will, and do not
import that the employment and character must continue to the testator's death2. It may appear
however, that the donees are regarded as a class to be ascertained in accordance with the ordinary
rules3, and generally the context of the will may show that persons filling the character at the date of the
will4, or at the testator's death5 or at any other time6, are designated.
Page 178
1 In Re Jones, Williams v A-G (1912) 106 LT 941, CA (Eng) , a gift to 'clerks' in the employment of a shipping company
was held not to include pursers on ships which the company managed. Service in a business is continuous so as to
qualify for a legacy where the testator has transferred the business, but remains manager: Re Howell's Trusts, Barclays
Bank v Simmons [1937] 3 All ER 647.
2 Parker v Marchant (1842) 1 Y & C Ch Cas 290 at 299 per Knight Bruce V-C ; Re Miller, Galloway v Miller (1913) 135
LT Jo 10. The presumption is that legacies to servants are in satisfaction of wages due, if any: Richardson v Greese
(1743) 3 Atk 65; Ellard v Phelan [1914] 1 IR 76.
3 See Re Marcus, Marcus v Marcus (1887) 57 LT 399 at 400. See also [330.156] and following.
4 Parker v Marchant (1842) 1 Y & C Ch Cas 290 (distinguished in Re Marcus, Marcus v Marcus (1887) 57 LT 399, on the
ground of a preceding gift to three named persons who were servants at the date of the codicil); Jones v Henley (1685) 2
Rep Ch 361, where the gift was construed to be to servants at the date of the will who continued as such until the death
of the testator.
5 Re Marcus, Marcus v Marcus (1887) 57 LT 399; Re Bell, Wright v Scrivener (1914) 58 Sol Jo 517 (chauffeur entitled as
a 'man servant').
6 Re Sharland, Kemp v Rozey [1896] 1 Ch 517; Re Miller, Galloway v Miller (1913) 135 LT Jo 10. As to a gift of a year's
wages to a servant see Blackwell v Pennant (1852) 9 Hare 551 at 554; Re Ravensworth, Ravensworth v Tindale [1905] 2
Ch 1, CA (Eng) ; Re Earl of Sheffield, Ryde v Bristow [1911] 2 Ch 267, CA (Eng) .
[330.201]
Persons who may benefit under gift to servants
Whether persons are included in the description 'servants' or 'employees' depends on the context and
the circumstances1. Thus, a gift to 'servants living with me at the time of my death' or 'servants in my
service at the time of my death' is not confined to persons actually living in the same house with the
testator, but, in the ordinary sense of the words, includes persons who are wholly in his service and not
free to serve others2. A servant or employee who before the testator's death leaves his service, either
voluntarily3 or even on a wrongful dismissal4, is not entitled to share in such a gift, but a temporary
absence while the relationship of service continues is immaterial5. Gifts to 'domestic' or 'household'
servants are as a rule restricted to indoor servants6.
1 Sleech v Thorington (1754) 2 Ves Sen 560 at 564; Burchett v Woolward (1823) Turn & R 442.
2 Blackwell v Pennant (1852) 9 Hare 551 at 553 per Turner V-C , following Townshend v Windham (1706) 22 Vern 546,
and Howard v Wilson (1832) 4 Hag Ecc 107. See also Chilcot v Bromley (1806) 12 Ves 114; Bulling v Ellice (1845) 9 Jur
936; Thrupp v Collett (No 2) (1858) 26 Beav 147; Armstrong v Clavering (1859) 27 Beav 226; Re Lawson, Wardley v
Bringloe [1914] 1 Ch 682 (male nurse); Re Tavers, Hurmson v Carr (1916) 86 LJ Ch 123 (nurse). Where the testatrix had
become mentally disordered, servants appointed by her receiver were entitled: Re Silverston, Westminster Bank Ltd v
Kohler [1949] Ch 270, [1949] 1 All ER 641.
3 Re Serre's Estate, Venes v Marriott (1862) 8 Jur 882.
4 Darlow v Edwards (1862) 1 H & C 547, Ex Ch ; Re Hartley's Trusts (1878) 47 LJ Ch 610.
5 Herbert v Reid (1810) 16 Ves 481 at 489, where Lord Eldon LC, discussing evidence of the servant leaving service,
said that the master must explain whether he sent her from the house as putting an end to the relation entirely, or only
suspending her services; Re Lawson, Wardley v Bringloe [1914] 1 Ch 682; Re Cole, Cole v Cole [1919] 1 Ch 218
(military service) (distinguished in Re Drake, Drake v Green [1921] 2 Ch 99); Re Feather, Harrison v Tapsell [1945] Ch
343, [1945] 1 All ER 552 (on the evidence a contract of employment continued although the employee was on military
service); Re Marryat, Westminster Bank Ltd v Hobcroft [1948] Ch 298, [1948] 1 All ER 796 (employee to have been in
service of company 'at my death for a period of five years'; the period must be continuous, and, on the facts, military
service could not be counted); Re Bedford, National Provincial Bank Ltd v Aulton [1951] Ch 905, [1951] 1 All ER 1093
('not less than five years' service'; period need not be continuous but military service could not be counted).
6 Ogle v Morgan (1852) 1 De GM & G 359 (indoor servants not receiving board wages) (followed in Vaughan v Booth
(1852) 16 Jur 808, and Re Drax, Savile v Yeatman (1887) 57 LT 475); Re Ogilby, Cochrane v Ogilby [1903] 1 IR 525; Re
Lawson, Wardley v Bringloe [1914] 1 Ch 682; Re Forrest, Bubb v Newcomb [1916] 2 Ch 386 (farm labourers excluded).
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[330.202]
Gift to holder of office
The mere description of a donee as the holder of an office is not of itself sufficient to raise the inference
that the gift is for the benefit of the office and not of the holder personally1, unless the context and
circumstances show that the holder for the time being was intended2. However, a gift to a person either
described as, or known to the testator as, the holder of an office, 'or his successors', or a gift to the
holder of an office for the time being, is for the benefit of the office or of the association or body in which
the office is held3.
1 Doe d Phillips v Aldridge (1791) 4 Term Rep 264; Donnellan v O'Neill (1870) IR 5 Eq 523. As to a gift to 'the superior' of
a religious order see Re Barclay, Gardner v Barclay Steuart v Barclay, [1929] 2 Ch 173, CA (Eng) .
2 Re Corcoran, Corcoran v O'Kane [1913] 1 IR 1.
3 Smart v Prujean (1801) 6 Ves 560 at 567; Re Fowler, Fowler v Booth (1914) 31 TLR 102, CA (Eng) ; Re Ray's Will
Trusts, Re Ray's Estate, Public Trustee v Barry [1936] Ch 520, [1936] 2 All ER 93.
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Administration and Succession/(1) Wills/(4) Construction of Particular Dispositions/ C. Quantity of Interest
Taken/ (i) In General
C. QUANTITY OF INTEREST TAKEN
(i) In General
[330.203]
No presumption as to quantity of interest
A testator is free to give such estate as he thinks fit, consistently with law1. There is no presumption that
he means one quantity of interest rather than another; and the intended extent of the benefit can be
known only from the words in which it is given2. If an intention of benefit towards a particular donee is
apparent on the face of the will, and the will is ambiguous as to the manner in which the gift is to take
effect with regard to the property given or the interest created in it, then in the absence of all other means
of ascertaining the intention3, the court leans to the construction which is most favourable to the donee4.
1 As to the extent of the right of disposition see [330.013] and following.
2 Blackburn v Stables (1814) 2 Ves & B 367 at 370 per Grant MR . See also Coward v Larkman (1888) 60 LT 1 at 2, HL .
As to the rules of construction of ambiguous words in wills see [330.093].
3 There is thus no room for the application of the rule where the ordinary principles of construction as to giving effect to
every word (Patching v Dubbins (1853) Kay 1 at 13-14 per Wood V-C ), and as to giving their ordinary meaning to the
words (Taylor v St Helens Corp (1877) 6 Ch D 264 at 270, CA (Eng), per Jessel MR ), sufficiently indicate the intention.
4 Williams on Wills (7th Edn) 739. 'Being a grant, a devise must be taken most strongly against the grantor': Cooper v
Woolfitt (1827) 2 H & N 122 at 125 per Pollock CB . As to a devise of an option of purchase of the testator's land at a fixed
price see [330.052].
[330.204]
Reduction or extension of interest
An interest apparently in fee simple in real estate, or an interest in personal estate, may be made subject
to defeasance1, or may, in the context of the whole will, be reduced to a life interest2. Similarly, a life
interest may be extended to an absolute interest 3, or may be reduced by the context to an estate until
remarriage or other event4.
If a beneficiary in tail does not fall within the true scope of a provision in the will reducing estates tail to
life estates, because he is born outside the period referred to in that provision, his estate tail is not
reduced and can validly be barred by a disentailing deed5; and an absolute interest6 subject to an
executory gift over on a contingency remains absolute if the contingency does not happen7.
It is, however, a settled rule of construction that a clear gift is not reduced by anything subsequent in the
will which does not with reasonable certainty indicate the testator's intention to reduce it8.
1 Bird v Webster (1853) 1 Drew 338.
2 Sherratt v Bentley (1834) 2 My & K 149; Joslin v Hammond (1834) 3 My & K 110; Hayes v Hayes (1836) 1 Keen 97;
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Morrall v Sutton (1842) 5 Beav 100 (on appeal (1845) 1 Ph 533) ; Earl of Lonsdale v Countess Barchtoldt (1854) Kay 646;
Johnston v Antrobus (1856) 21 Beav 556; Re Bagshaw's Trusts (1877) 46 LJ Ch 567, CA (Eng) ; Re Houghton, Houghton
v Brown (1884) 53 LJ Ch 1018; Re Russell (1885) 52 LT 559, CA (Eng) ; Re Sanford, Sanford v Sanford [1901] 1 Ch 939
at 942; Re Lupton [1905] P 321. See also Goodtitle d Cross v Wodhull (1745) Willes 592. An interest may be so reduced
even though the gift over is of 'whatever remains' or in similar terms: see [330.214]. If the prior interest is not so reduced,
such a gift over is void: see [330.213], [330.214].
3 A gift of personal estate to a person for his life and after his death to his executors, confers an absolute interest: see Re
Brooks, Public Trustee v White [1928] Ch 214, CA (Eng) . As to unlimited gifts of income being gifts of capital see
[330.209].
4 Meeds v Wood (1854) 19 Beav 215 at 222. See also Lancaster v Varty (1826) 5 LJOS Ch 41. Conversely an estate may
be extended. Thus, a devise to a wife for life provided she remains a widow, but in case she remarries, then to JS when he
attains 23, gives an estate until JS attains 23, even if she remarries before: Doe d Dean and Chapter of Westminster v
Freeman (1786) 1 Term Rep 389. See also Re Cabburn, Gage v Rutland (1882) 46 LT 848.
5 Re Watson, Culme-Seymour v Brand [1930] 2 Ch 344.
6 There must first be an absolute gift: Re Cohen's Will Trusts, Cullen v Westminster Bank Ltd [1936] 1 All ER 103. For a
fuller consideration of the rule in Lassence v Tierney (1849) 1 Mac & G 551 see [330.094].
7 Watkins v Weston (1863) 3 De GJ & Sm 434; Re Bourke's Trusts (1891) 27 L R Ir 573; Parnell v Boyd [1896] 2 IR 571,
CA (Ir) . See also Re Lady Monck's Will, Monck v Croker [1900] 1 IR 56, CA (Ir) .
8 Thornhill v Hall (1834) 2 Cl & Fin 22 at 36, HL ; Fetherston v Fetherston (1835) 3 Cl & Fin 67 at 73, 75, HL ; Re Roberts,
Percival v Roberts [1903] 2 Ch 200 at 204; Re Freeman, Hope v Freeman [1910] 1 Ch 681 at 691, CA (Eng) . This rule
does not mean, however, that the court is to make a comparison between the two clauses in question as to lucidity:
Randfield v Randfield (1860) 8 HL Cas 225 at 235 per Lord Campbell . The rule, however, has frequently been stated as
requiring the subsequent clause to be 'equally' clear with the first; eg as meaning that words which cut down a gift clearly
given should be as clear as the words which confer it: see Doe d Hearle v Hicks (1832) 8 Bing 475, HL ; Kiver v Oldfield
(1859) 4 De G & J 30 at 37; Leslie v Earl of Rothes [1894] 2 Ch 499 at 516, CA (Eng) . The rule applies not only where the
question is one of the revocation of a legacy, but also as between one donee and another person claiming to be donee
under the same will: Re Freeman, Hope v Freeman [1910] 1 Ch 681 at 687, CA (Eng) .
[330.205]
Effect of stated purpose
If, when making a gift by will, a testator expresses in it a purpose, one of two alternative constructions
may be applicable: the gift may be a devise or bequest to a donee either for the particular purpose but
not for that purpose only, in which case a beneficial interest is conferred subject to the particular
purpose, or for the particular purpose and nothing more, in which case (apart from the particular
purpose) no beneficial interest is conferred on the immediate donee1. Thus, a gift may be subject to a
trust extending either to the whole of it2, or to part of it3 or to a personal obligation for maintenance of
children4, in which case an inquiry may be directed as to the proper amount to be applied5. However, if
the context allows6, the purpose is treated merely as the testator's motive in making the gift, which is
intended to increase the donee's funds to enable him to accomplish that purpose7, and the donee takes
an unfettered interest8.
1 See the principle adopted by Sir Raymond Evershed MR in Re Rees, Williams v Hopkins [1950] Ch 204 at 207-208),
[1949] 2 All ER 1003 at 1005, CA (Eng) , citing King v Denison (1813) 1 Ves & B 260 at 272 per Lord Eldon . See also
Irvine v Sullivan (1869) LR 8 Eq 673; Croome v Croome (1889) 61 LT 814, HL ; Re West, George v Grose [1900] 1 Ch 84;
Re Foord, Foord v Conder [1922] 2 Ch 519. As to where phrases such as 'subject to' or 'on condition that' are used see
[330.219]. See also Re Gardner, Huey v Cunnington [1920] 2 Ch 523, CA (Eng) ('knowing that he will carry out my
wishes'); Re Dulson (1929) 45 TLR 228 ('in trust on the understanding that'); Re Williams, Williams v All Souls, Hastings
(Parochial Church Council) [1933] Ch 244 ('knowing that he is fully aware of my intention') (distinguishing Re Falkiner,
Mead v Smith [1924] 1 Ch 88). As to secret trusts see [330.089], [330.090].
2 Re Rees, Williams v Hopkins [1950] Ch 204, [1949] 2 All ER 1003, CA (Eng) . See also Cooper v Thornton (1790) 3 Bro
CC 96; Robinson v Tickell (1803) 8 Ves 142; Blakeney v Blakeney (1833) 6 Sim 52; Wetherell v Wilson (1836) 1 Keen 80;
Wood v Richardson (1840) 4 Beav 174; Ford v Fowler (1840) 3 Beav 146; Hodgson v Green (1842) 11 LJ Ch 312;
Inderwick v Inderwick (1844) 13 Sim 652; Barnes v Grant (1856) 26 LJ Ch 92; Wainford v Heyl (1875) LR 20 Eq 321;
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McIsaac v Beaton (1905) 37 SCR 143; Re De la Hunty, O'Connor v Butler [1907] 1 IR 507 at 511; Re Hickey, Hickey v
Hickey [1913] 1 IR 390, CA (Ir) .
3 Raikes v Ward (1842) 1 Hare 445 at 450; Longmore v Elcum (1843) 2 Y & C Ch Cas 363; Crockett v Crockett (1848) 2
Ph 553; Costabadie v Costabadie (1847) 6 Hare 410 at 414; Hart v Tribe (1854) 18 Beav 215. Where children take
beneficially, they take, according to the context, either concurrently with the donee (Jubber v Jubber (1839) 9 Sim 503;
Wilson v Maddison (1843) 2 Y & C Ch Cas 372; Re Nolan, Sheridan v Nolan [1912] 1 IR 416; Re Campbell, McCabe v
Campbell [1918] 1 IR 429) or in succession to him (Chambers v Atkins (1823) 1 Sim & St 382; Re Whitty, Evans v Evans
(1881) 43 LT 692).
4 Hadow v Hadow (1838) 9 Sim 438; Leach v Leach (1843) 13 Sim 304; Browne v Paull Hoggins v Paull, (1850) 1 Sim
NS 92 at 104; Re Robertson's Trusts (1858) 6 WR 405; Scott v Key (1865) 11 Jur NS 819; Lambe v Eames (1871) 6 Ch
App 597.
5 Hamley v Gilbert (1821) Jac 354. Cf however, Thurston v Essington (1727) Jac 361n, HL ; Re Booth, Booth v Booth
[1894] 2 Ch 282; K'Eogh v K'Eogh [1911] 1 IR 396.
6 In such cases the inference that an unfettered interest is intended may be drawn from the absence of any expression
excluding the donee from taking beneficially (Thorp v Owen (1843) 2 Hare 607 at 615-616), or from the difficulty in
ascertaining the amount intended to be applied for the purposes specified in every possible state of circumstances (Thorp
v Owen (above) at 615; Cowman v Harrison (1852) 10 Hare 234 at 239), or from the fact that the specified object
necessarily depends on the choice of the named person, although he may desire it for his own convenience (Barrs v
Fewkes (1864) 2 Hem & M 60 at 65: or that, apart from the will, the donee is already under an obligation to the specified
object (Byne v Blackburn (1858) 26 Beav 41)).
7 Thorp v Owen (1843) 2 Hare 607 at 614; Benson v Whittam Hemming v Whittam, (1831) 5 Sim 22 at 32. See also Re
Lord Langattock, Johnson v Church of England Central Board of Finance (1918) 34 TLR 341 (intention as affecting date of
payment).
8 Thorp v Owen (1843) 2 Hare 607; Ward v Biddles (1847) 16 LJ Ch 455; Leigh v Leigh (1848) 12 Jur 907; Mackett v
Mackett (1872) LR 14 Eq 49 at 53; Farr v Hennis (1881) 44 LT 202, CA (Eng) ; Re Adams and Kensington Vestry (1884)
27 Ch D 394, CA (Eng) ; Re Hill, Public Trustee v O'Donnell [1923] 2 Ch 259 ('for the benefit of themselves and their
respective families' held to be an absolute gift); Re Stirling, Union Bank of Scotland Ltd v Stirling [1954] 2 All ER 113,
[1954] 1 WLR 763 (gift to executor with request to dispose of it in accordance with memorandum; no communication of
memorandum during lifetime). Cf Re Rees, Williams v Hopkins [1950] Ch 204, [1949] 2 All ER 1003, CA (Eng) . As to a gift
to a charity where changes have taken place in the management of the charity, but without interfering with its continuity
see Re Wedgwood, Sweet v Cotton [1914] 2 Ch 245.
[330.206]
Benefit to donee in a particular manner
If a gift is of a specified amount and the purpose is to benefit the donee personally in a particular
manner, it is a question of construction of the particular will whether the testator's primary object is to
make the specified gift to the donee, or to have the specified purpose accomplished1. Prima facie, in a
gift otherwise unconditional, the primary object is to make the specified gift; and where on the true
construction of the will a gift has this primary object and there is also an expression of some secondary
purpose, then, if this purpose is satisfied and does not exhaust the gift2, or, if it becomes impossible
(otherwise than through the donee's act or default)3, the gift takes effect according to the primary
purpose. In such a case the donee, if sui juris, is, or his representatives after his death4 are, prima facie
entitled to payment, without the testator's executors being bound to see to the application of the gift5.
Where, however, the specified purpose is the primary object, the donee is entitled to the gift, but only so
far as applicable to that purpose6 and for no other purpose7; and the gift may be so expressed that the
cost of accomplishing that purpose may have to be paid out of the testator's estate, even though the
primary fund is sufficient8. In such cases, so far as the purpose cannot be accomplished or becomes
impossible, the gift fails9.
1 A bequest for such purposes as the donee thinks fit is a gift to him: Paice v Archbishop of Canterbury (1807) 14 Ves 364
at 370 per Lord Eldon LC . Likewise, in Isherwood v Payne (1800) 5 Ves 677 (gift to provide furniture or 'for any other
purpose she should think proper'), and Re Harbison, Morris v Larkin [1902] ('for whatever purposes he pleases'), the
donee took an unfettered gift. See also Dowling v Dowling [1902] 1 IR 79 at 83.
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2 Cope v Wilmot (1772) Amb 704 (gift not exceeding 3,000 for advancement in business; 1,000 refunded on advancement;
donee entitled to balance).
3 See eg Barlow v Grant (1684) 1 Vern 255 (gift for apprenticeship; donee died before requisite age); Hammond v Neame
(1818) 1 Swan 35 (maintenance of children who did not exist); Lord Amhurst v Duchess of Leeds (1842) 12 Sim 476 (gift
to pay rent of any residence donee might choose; donee living rent free with son; unconditional gift); Lockhart v Hardy
(1846) 9 Beav 379 (gift to pay off a mortgage which was foreclosed during the testator's lifetime); Gough v Bult (1848) 16
Sim 45 at 54 (gift not exceeding 2,000 for advancement; donee died before advance made; donee's executors entitled to
2,000); Parsons v Coke (1858) 27 LJ Ch 828 (gift to carry on testator's business; business subsequently sold by testator);
Palmer v Flower (1871) LR 13 Eq 250 (gift for purchase of army commission; right of purchase abolished); Hutchinson v
Rough (1879) 40 LT 289 (gift to establish donee in profession; donee not adopting profession); Adams v Lopdell (1890) 25
LR Ir 311; Re Segelcke, Ziegler v Nicol [1906] 2 Ch 301 (gift of legacy to make donee's gifts up to an amount already
exceeded); Re Osoba, Osoba v Osoba [1979] 2 All ER 393, [1979] 1 WLR 247, CA (Eng) (where a gift of residue on trust
for the benefit of a widow, an aged mother (maintenance) and a daughter (training up to university grade) was held to be a
absolute trust for all three as joint tenants so that the daughter was absolutely entitled after the death of the others). A gift
to a minor for a particular purpose is effectual notwithstanding the failure of the purpose.
4 Barlow v Grant (1684) 1 Vern 255; Lewes v Lewes (1848) 16 Sim 266.
5 Apreece v Apreece (1813) 1 Ves & B 364 (gift to buy a ring); Re Skinner's Trusts (1860) 1 John & H 102 (printing a
book). See also Knox v Lord Hotham (1845) 15 Sim 82 (purchase of house); Noel v Jones (1848) 16 Sim 309 (education
of minor); Dowling v Dowling [1902] 1 IR 79 (purchase of house). The mere fact that a third person would benefit if the
legacy were applied for the specified purpose does not affect the legatee's right: Adams v Lopdell (1890) 25 LR Ir 311; Earl
of Mexborough v Savile (1903) 88 LT 131 (gift to pay estate duty).
6 This applies to capital as well as to income: Re Black, Falls v Alford [1907] 1 IR 486, CA (Ir) .
7 Dick's Trustees v Dick 1911 48 SLR 325 (gift for education of donee in his profession; special diploma there held not
included).
8 Milner v Milner (1748) 1 Ves Sen 106 (gift of miscalculated sum to make up daughter's fortune to named amount); Re
Sanderson's Trusts (1857) 3 K & J 497.
9 Re De Crespigny, De Crespigny v De Crespigny [1886] WN 24, CA (Eng) . Cf Re Ward's Trusts (1872) 7 Ch App 727.
[330.207]
Gift at discretion of named person
Where a clear gift is made and the application of the gift is left to the discretion of another person, on the
true construction of the gift the discretion given may be ineffective1. On the other hand, the donee is not
so entitled where the discretion extends to deciding what is the amount of the gift and whether it is to be
given at all2.
1 Gough v Bult (1848) 16 Sim 45 at 54 per Lord Cottenham LC . See also Beevor v Partridge (1840) 11 Sim 229; Re
Johnston, Mills v Johnston [1894] 3 Ch 204. Cf Gude v Worthington (1849) 3 De G & Sm 389.
2 Re Johnston, Mills v Johnston [1894] 3 Ch 204 at 208. See also Cowper v Mantell (No 2) (1856) 22 Beav 231; Re
Sanderson's Trust (1857) 3 K & J 497.
[330.208]
Gift to benefit particular property
Where a sum of money is directed to be laid out for particular purposes in connection with certain
property and, although no donee is specified, it is clear that the testator's intention was to benefit the
persons entitled to the property, those persons are entitled to that money even though the particular
purposes fail1. Where they are absolutely entitled to the property, those persons are entitled to the
Page 184
money, whether it is actually laid out for the purposes or not2.
1 Earl of Lonsdale v Countess Berchtoldt (1857) 3 K & J 185.
2 Re Bowes, Earl of Strathmore v Vane [1896] 1 Ch 507. Cf Re Colson's Trusts (1853) Kay 133; Cox v Sutton (1856) 2 Jur
NS 733 (gift as a repairing fund for the benefit of the persons in possession of an estate); Kennedy v Kennedy [1914] AC
215, PC .
Page 185
Taken/ (ii) Absolute and Life Interests/ (A) Absolute Interests
(ii) Absolute and Life Interests
(A) Absolute Interests
[330.209]
Unlimited gifts of rent or income
An unlimited devise1 of the rents and profits of land is prima facie a gift of the land itself2, and an
unlimited bequest of dividends, interest, income or produce of personal property, or of a mixed fund, is
prima facie a gift of the capital or corpus of the property or fund3. This rule does not, however, apply to
a gift of income to a charity, as a charity continues in perpetuity and effect can validly be given to a
perpetual trust of income for its purposes4. Moreover, the rule may be excluded where the will shows
an intention not do dispose of the corpus of the property5, as where the donee is to take an interest of
the same nature as another donee who expressly takes a life interest only6; and it does not apply
where the gift of income is not unlimited7, or where the gift is not of all the benefits arising from the
property8, but merely of a particular benefit9, or a benefit to be enjoyed by the donee personally10.
Thus, a gift of an annuity not previously existing is prima facie for the donee's life only, but the testator's
intention to give a larger interest to the donee, or to render the annuity perpetual, may be inferred from
the language of the will; and a distinction is to be drawn between a gift of an annuity charged on
property and a gift of a share of the income of property unlimited in point of time11. It makes no
difference whether the income is given to the donee directly or through the intervention of trustees12. A
charge on the rents, dividends and income of property indefinitely may in similar cases be a charge on
the property itself13.
If, being entitled to land subject to a lease, a testator devises the 'rent' or 'ground rent' of the land
without expressly disposing of his reversion, the devise prima facie includes not only the rent payable
during the lease, but also the testator's whole interest in the land14.
A gift of income to a spinster so long as she continues single and unmarried may15 be construed as a
gift of the income for a period indefinite in point of time and not ceasing with her death unmarried, and
thus may amount to a gift of the capital in that event16. However, where there is a gift of income until
marriage followed by a gift over on marriage, the donee of income is not entitled to the corpus17, even
though the gift over takes the form of a trust to settle the corpus for her benefit on her marriage18.
1 Apart from the Wills Act 1959 (Act 346) s 21 (see [330.210]), the gift would itself, and without any assistance from the
context, create merely an estate for life: Hodson v Ball (1845) 14 Sim 558 at 571.
2 Rayman v Gold (1591) Moore KB 635; Johnson v Arnold (1748) 1 Ves Sen 169 at 171; Murthwaite v Jenkinson (1824)
2 B & C 357; Steward v Garnett (1830) 3 Sim 398, where it was held that the words would pass everything that was
necessary to the enjoyment of the estate; Doe d Goldin v Lakeman (1831) 2 B & Ad 30, where the estate was
conditional; Harvey v Harvey (1842) 5 Beav 134; Plenty v West (1848) 6 CB 201; Bignall v Rose (1854) 24 LJ Ch 27;
Mannox v Greener (1872) LR 14 Eq 456; Co Litt 4b; Re Martin, Martin v Martin [1892] WN 120; Bates v Taylor (1893) 19
VLR 120. See also Charitable Donations and Bequests Comrs v De Clifford (1841) 1 Dr & War 245; Adshead v Willetts
(1861) 29 Beav 358; Shacklock v Jarvis (1872) 26 LT 682; Baker v Blount [1917] 1 IR 316, CA (Ir) . See further Mannox
v Greener (above), where it was held that the rule was not confined to a devise of 'rents and profits', the rents in that
case being described as 'income'.
3 Elton v Shephard (1781) 1 Bro CC 532; Philipps v Chamberlaine (1798) 4 Ves 51 at 58; Page v Leapingwell (1812) 18
Ves 463; Adamson v Armitage (1815) 19 Ves 416 at 418; Stretch v Watkins (1816) 1 Madd 253; Clough v Wynne (1817)
Page 186
2 Madd 188; Haig v Swiney (1823) 1 Sim & St 487; Benson v Whittam Hemming v Whittam, (1831) 5 Sim 22; Phillips v
Eastwood (1835) L & G temp Sugd 270 at 296; Mackworth v Hinxman (1836) 2 Keen 658; Stephenson v Dowson (1840)
3 Beav 342; Humphrey v Humphrey (1851) 1 Sim NS 536, where other gifts were given 'absolutely'; Southouse v Bate
(1851) 16 Beav 132; Jenings v Baily (1853) 17 Beav 118, where legacies given at the death of the donee did not exclude
the rule; Tyrell v Clark (1854) 2 Drew 86; Boosey v Gardener (1854) 18 Beav 471 (on appeal on another point, 5 De GM
& G 122) ; Dowling v Dowling (1866) 1 Ch App 612; Cooney v Nicholls (1881) 7 LR Ir 107 at 115, CA (Ir) ; Davidson v
Kimpton (1881) 18 Ch D 213 at 217; Re L'Herminier, Mounsey v Buston [1894] 1 Ch 675 at 676, where the rule was
applied to a power to appoint the income of a fund; Wiley v Chanteperdrix [1894] 1 IR 209 at 214; Tredennick v
Tredennick [1900] 1 IR 354; Sheridan v O'Reilly [1900] 1 IR 386 at 388, 397; Re Lawes-Wittewronge, Maurice v Bennett
[1915] 1 Ch 408, where a gift of net profits was held to carry the capital of shares in companies but not of debentures;
Baker v Blount [1917] 1 IR 316, CA (Ir) , where the rule was applied to a gift of part of the income.
4 Re Levy, Barclays Bank Ltd v Board of Guardians and Trustees for the Relief of the Jewish Poor [1960] Ch 346, [1960]
1 All ER 42, CA (Eng) .
5 See Re Morgan, Morgan v Morgan [1893] 3 Ch 222 at 227, CA (Eng), per Lindley LJ . See also Re Rawlins' Trusts
(1890) 45 Ch D 299, CA (Eng) ; affd sub nom Scal v Rawlins [1892] AC 342, HL .
6 See Re Morgan, Morgan v Morgan [1893] 2 Ch 222 at 228, CA (Eng), per Lindley LJ . See also Wynne v Wynne
(1837) 2 Keen 778 at 791; Blann v Bell (1852) 2 De GM & G 775 at 781 (sum of bank annuities).
7 Buchanan v Harrison (1861) as reported in 31 LJ Ch 74 at 79. See also Sansbury v Read (1805) 12 Ves 75; Re
Mason, Mason v Mason [1910] 1 Ch 695 at 700, CA (Eng) ; Re Orr, M'Dermott v Anderson [1915] 1 IR 191 (so long as
widow should remain unmarried, but in case she should remarry, then the interest on half the amount).
8 Shep Touch (8th Edn) 89.
9 As to devises of a right of use and occupation of land see [330.211].
10 The fact that the donee was a married woman and that the income was given to her for her separate use, was not
sufficient to exclude the rule: South v Alleine (1695) 1 Salk 228; Elton v Shephard (1781) 1 Bro CC 532; Adamson v
Armitage (1815) 19 Ves 416; Tawney v Ward (1839) 1 Beav 563; Humphrey v Humphrey (1851) 1 Sim NS 536; Watkins
v Weston (1863) 3 De GJ & Sm 434; Epple v Stone (1906) 3 CLR 412.
11 See eg Re Morgan, Morgan v Morgan [1893] 3 Ch 222 at 228, 230, CA (Eng), per Lindley LJ .
12 Haig v Swiney (1823) 1 Sim & St 487 at 490.
13 Baines v Dixon (1747) 1 Ves Sen 41; Allan v Backhouse (1813) 2 Ves & B 65 (affd (1821) Jac 631) ; Phillips v
Gutteridge (1862) 3 De G J & Sm 332 at 336; Metcalfe v Hutchinson (1875) 1 Ch D 591 at 594; Re Green, Baldock v
Green (1888) 40 Ch D 610, where the rule was excluded; Re Young, Brown v Hodgson [1912] 2 Ch 479 at 482, 486
(referring to Hambro v Hambro [1894] 2 Ch 564 (terminable annuity)); Ramsay v Lowther (1912) 16 CLR 1 at 18-19 (gift
of rents; not indefinite).
14 Kerry v Derrick (1605) Cro Jac 104; Maundy v Maundy (1735) 2 Stra 1020; Kaye v Laxon (1780) 1 Bro CC 76; Walker
v Shore (1815) 19 Ves 387; Ashton v Adamson (1841) 1 Dr & War 198. See also Cuthbert v Lempri re (1814) 3 M & S
158.
15 The decision first cited in note 16 below has been much criticised: see Re Henry Will Trust, Mussett v Smith [1953] 1
All ER 531, [1953] 1 WLR 376 (citing Re Boddington, Boddington v Clairat (1884) 25 Ch D 685 at 689, CA (Eng) and Re
Mason, Mason v Mason [1910] 1 Ch 695).
16 Rishton v Cobb (1839) 5 My & Cr 145 at 152 (followed in Re Howard, Taylor v Howard [1901] 1 Ch 412 at 413
(annuity to testator's wife 'so long as she remains unmarried')); Re Henry Will Trust, Mussett v Smith [1953] 1 All ER 531,
[1953] 1 WLR 376. Cf Re Boddington, Boddington v Clairat (1884) 25 Ch D 685, CA (Eng) , where the donee did not
satisfy the requirement of being the testator's 'widow'. See also Stewart v Murdoch [1969] NI 78, where there was a
devise and bequest of a farm and chattels to the testator's two daughters so long as they remained unmarried with a gift
over on the marriage of the second daughter; neither daughter married, and the interest was held to continue. Where a
testator bequeathed his residue to his wife so long as she continued his widow, and, if she married again, the balance,
not to exceed 400, was given over, the widow on remarriage took everything, except the sum of 400, absolutely: Re
Rowland, Jones v Rowland (1902) 86 LT 78 (but as to the absolute interest there held to have been taken see the
criticisms of the case in Re Johnson (1912) 27 OLR 472 at 477).
17 Re Mason, Mason v Mason [1910] 1 Ch 695, CA (Eng) ; Re Barklie, M'Calmont v Barklie [1917] IR 1.
18 Re Henry Will Trust, Mussett v Smith [1953] 1 All ER 531, [1953] 1 WLR 376.
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[330.210]
Devise or bequest of property without words of limitation
The Wills Act 19591 provides that where any property has been devised or bequeathed to any person
without any words of limitation, the devise or bequest is to be construed to pass the fee simple or other
the right to the whole estate or interest in the property which the testator had power to dispose of by will
in such property unless a contrary intention2 appears by the will3. This rule is applicable only to
property which exists and belongs to the testator at the time of his death and over which he has then a
disposing power, and does not apply to a particular interest in the property, or an annuity or rent
charge, which the testator is about to create for the first time by his will4.
2 The contrary intention must be gathered from the whole will: Crumpe v Crumpe [1900] AC 127 at 131, HL, per Earl of
Halsbury LC ; Pelham-Clinton v Duke of Newcastle [1902] 1 Ch 34 at 37 per Buckley J; affd [1903] AC 111, HL .
3 Wills Act 1959 s 21 (which is equivalent to the English Wills Act 1837 s 28).
4 Nichols v Hawkes (1853) 10 Hare 342 at 343-344 per Turner VC .

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Taken/ (ii) Absolute and Life Interests/ (B) Life Interests
(B) Life Interests
[330.211]
Definition by rights of enjoyment
The interest taken by a donee may be defined by rights of enjoyment attached to it. Thus, prima facie a
gift of the use1 or of the free use and occupation2 of a house or land is a gift of the rents and profits, at
all events during the donee's life3, and prima facie the donee under such a gift need not personally
reside in the house or on the land, but may let or dispose of the property during his life4. Similarly,
prima facie a gift of the 'possession' or 'use and enjoyment' of chattels gives the donee a life interest5,
and the donee may let the goods on hire6.
1 Cook v Gerrard (1668) 1 Saund 181 at 186. Even before the Wills Act 1837 (UK), a devise of land 'freely to be enjoyed
and possessed' might give the fee: Loveacres d Mudge v Blight (1775) 1 Cowp 352; Thomas v Phelps (1828) 4 Russ
348. Cf Bromitt v Moor (1851) 9 Hare 374 at 378.
2 Mannox v Greener (1872) LR 14 Eq 456; Coward v Larkman (1888) 60 LT 1, HL . See also Paramour v Yardley (1579)
2 Plowd 539 at 542; Welcden v Elkington (1576) 2 Plowd 516 at 524; R v Eatington Inhabitants (1791) 4 Term Rep 177;
Doe d Chillcott v White (1800) 1 East 33 (the income of a cottage 'and her living in it').
3 See Coward v Larkman (1888) 66 Lt 1, HL (whether a gift in perpetuity can be inferred); Public Trustee v Edmund
(1912) 32 NZLR 202. In Whittome v Lamb (1844) 12 M & W 813 at 820-821, a chattel interest only was inferred. Cf Reay
v Rawlinson (1860) 29 Beav 88, where a gift of 'grass for a cow' in a field created a profit Ã prendre.
4 Clive v Clive (1854) 2 Eq Rep 913; Rabbeth v Squire (1859) 4 De G & J 406 at 413; Mannox v Greener (1872) LR 14
Eq 456 at 461; National Trustees, Executors and Agency Co Ltd v Keast (1896) 22 VLR 447. An intention that
occupation is intended to be personal may be shown by a gift over on ceasing to occupy (Maclaren v Stainton (1858) 27
LJ Ch 442; Stone v Parker (1860) 1 Drew & Sim 212), or by other circumstances (see Re Varley, Thornton v Varley
(1893) 62 LJ Ch 652; Re Stewart, Stewart v Hislop (1904) 23 NZLR 797). See also Re Gibbons, Gibbons v Gibbons
[1920] 1 Ch 372, CA (Eng) . A personal right of residence, rent free, does not entitle the donee to rents and profits in
case of his non-residence: Parker v Parker (1863) 1 New Rep 508; May v May (1881) 44 LT 412.
5 Low v Carter (1839) 1 Beav 426 at 430; Espinasse v Luffingham (1846) 3 Jo & Lat 186 (plate). For circumstances
showing a contrary intention see Terry v Terry (1862) 33 Beav 232 (use of book debts and capital). In the case of
consumables, an absolute interest is created: Montresor v Montresor (1845) 1 Coll 693.
6 Re Williamson, Murray v Williamson (1906) 94 LT 813, following Marshall v Blew (1741) 2 Atk 217 and Rabbeth v
Squire (1859) 4 De G & J 406.
[330.212]
Determinable interest
A gift until bankruptcy, alienation, marriage or other event which must happen, if at all, during the life of
a donee prima facie creates a determinable life interest only1; but such a gift, or a gift 'so long as'
certain circumstances continue2 (even, for example, a gift so long as the donee remains unmarried3),
may create an estate in fee simple or absolute interest determinable on those circumstances ceasing to
exist.
1 Jordan v Holkham (1753) Amb 209 (during widowhood); Banks v Braithwaite (1863) 32 LJ Ch 198 (alienation); Re
Page 189
Boddington, Boddington v Clairat (1884) 25 Ch D 685, CA (Eng) (so long as she continues my widow and unmarried);
Re Mason, Mason v Mason [1910] 1 Ch 695, CA (Eng) (marriage); Re Wiltshire, Eldred v Comport (1916) 142 LT Jo 57.
A gift during widowhood determines on remarriage but is restored on the annulment of the marriage (Re Dewhirst,
Flower v Dewhirst [1948] Ch 198, [1948] 1 All ER 147; Re D'Altroy's Will Trusts, Crane v Lowman [1968] 1 All ER 181,
[1968] 1 WLR 120), although transactions completed during the subsistence of the remarriage and on the footing that it
subsists cannot be undone (Re Eaves, Eaves v Eaves [1939] 4 All ER 260, CA (Eng) ).
2 See Sutcliffe v Richardson (1872) LR 13 Eq 606 (gift of an annuity 'so long as she and my son should live together').
3 Re Howard, Taylor v Howard [1901] 1 Ch 412; Re Rowland, Jones v Rowland (1902) 86 LT 78.
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Taken/ (ii) Absolute and Life Interests/ (C) Absolute Interest Reduced to Life Interest
(C) Absolute Interest Reduced to Life Interest
[330.213]
Absolute or life interest
It has been stated previously that a gift which is apparently absolute may be made subject to
defeasance, or may be reduced to a life interest1. Thus, a gift of real property in fee simple, or of
personal property for an interest which prima facie is absolute, may be made subject to an executory
gift over; but a gift over which conflicts with the right of disposition attached to the gift is not permitted.
Thus, a restriction on the donee's right of alienation of an interest clearly given to him is repugnant to
the gift and void, and a gift over on breach of the restrictions cannot take effect2. A gift over if the donee
dies without having disposed of the property3, or of so much as the donee does not dispose of4, is also
void, if, on the construction of the will as a whole, the donee's interest is an absolute interest5.
1 See [330.204].
2 It is the same where the gift over interferes with the devolution of the property on death: Shaw v Ford (1877) 7 Ch D
669; Re Ashton, Ballard v Ashton [1920] 2 Ch 481 (gift over in the event of the donee dying mentally unfit).
3 Gulliver v Vaux (1746) 8 De GM & G 167n; Lightburne v Gill (1764) 3 Bro Parl Cas 250, HL ; Ross v Ross (1819) 1 Jac
& W 154; Bourn v Gibbs (1831) Russ & M 614; Re Yalden (1851) 1 De GM & G 53; Holmes v Godson (1856) 8 De GM &
G 152; Bowes v Goslett (1857) 6 W R 8; Henderson v Cross (1861) 29 Beav 216; Re Dixon, Dixon v Charlesworth [1903]
2 Ch 458. Cf Doe d Stevenson v Glover (1845) 1 CB 448 (doubted in Holmes v Godson (1856) 8 De GM & G 152); Re
O'Hare, Madden v M'Givern [1918] 1 IR 160.
4 Watkins v Williams Haverd v Church, (1851) 3 Mac & G 622; Perry v Merritt (1874) LR 18 Eq 152; Re Jones,
Richards v Jones [1898] 1 Ch 438 at 441; Lloyd v Tweedy [1898] 1 IR 5. If the donee predeceases the testator, the
doctrine of repugnancy does not apply, and the gift over takes effect: Re Dunstan, Dunstan v Dunstan [1918] 2 Ch 304.
5 An interest in terms absolute may be reduced by the context to a life interest (see [330.204]), even where the gift over
is of property undisposed of (see [330.214]).
[330.214]
Clear absolute gift in the first instance
Where there is a clear absolute gift followed by words purporting to confer a power of disposition1 with
a gift over if the power is not exercised, the absolute gift takes effect, and the gift over is inconsistent
with it and is void2.
Thus, where personal estate is given to a named donee in terms which confer an absolute estate, and
then further interests are given merely after or on the termination of that donee's interest, and not in
defeasance of it, his absolute interest is not reduced and the further interests fail3. An absolute interest
is not cut down by precatory words unless those words create an imperative obligation4.
Where there is an absolute gift of property followed by a gift over of the property after the death of the
donee5 or after his death without issue6 or without leaving children7, or of that part of the property of
which he has not disposed, the absolute gift prevails and the ultimate gift is repugnant and void8. It
may, however, appear sufficiently clearly on the construction of the will as a whole that a gift which is in
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terms absolute is in fact intended as a gift of a life interest only9, and this construction is not prevented
merely by the fact that the gift over is of 'whatever remains' or in similar terms10. Where a will conferring
an absolute interest is varied by codicil, an intention may appear that the donee is to take a life interest
or a life interest with a power of disposition11. If there is a doubt as to what interest the donee takes,
other provisions inconsistent with an absolute gift, such as a restriction on alienation12, or a gift over on
the donee disposing13, or failing to dispose14, of the property, may show that he is to take a life interest
only.
1 Comber v Graham (1830) 1 Russ & M 450; Brook v Brook (1856) 3 Sm & G 280; Howorth v Dewell (1860) 29 Beav 18;
McKenna v McCarten [1915] 1 IR 282. 'To be at her own disposal in any way she may think best for the benefit of herself
and family' is an absolute gift: Lambe v Eames (1871) 6 Ch App 597. See also Re Hutchinson and Tenant (1878) 8 Ch D
540. A devise to the testator's wife, her heirs and assigns with the intention that she might enjoy the same during her life,
and by her will dispose of the same as she thought proper, gave her a fee simple estate: Doe d Herbert v Thomas (1835)
3 Ad & E1 123. An absolute gift is not reduced by the expression of a wish as to how the donee is to dispose of the
property (Re Humphrey's Estate [1916] 1 IR 21), nor is it necessarily reduced by a direction for settlement (Re Bannister,
Heys-Jones v Bannister (1921) 90 LJ Ch 415).
2 Maskelyn v Maskelyn (1775) Amb 750; Hales v Margerum (1796) 3 Ves 299; Re Mortlock's Trusts (1857) 3 K & J 456
at 457; Doe d Herbert v Thomas (1835) 3 Ad & E1 123. See also [330.204].
3 Hoare v Byng (1844) 10 Cl & Fin 508, HL (to B 'and afterwards' to others); Re Percy, Percy v Percy (1883) 24 Ch D
616 ('afterwards') (followed in Hyndman v Hyndman [1895] 1 IR 179 ('at their death')); Re Gouk, Allen v Allen [1957] 1 All
ER 469, [1957] 1 WLR 493 (residuary bequest to A 'and thereafter' to her issue). It is otherwise where the interests are
such that the interests other than the last can be treated as successive life interests: Earl of Lonsdale v Countess
Berchtoldt (1854) Kay 646 ('remainder to B, remainder to C').
4 Re Johnson, Public Trustee v Calvert [1939] 2 All ER 458.
5 Thornhill v Hall (1834) 2 Cl & Fin 22, HL ; Crozier v Crozier (1873) LR 15 Eq 282. Cf Abbott v Middleton Ricketts v
Carpenter, (1855) 21 Beav 143; affd (1858) 7 HL Cas 68 (gift over on death of third person); Waters v Waters (1857) 3
Jur NS 654.
6 Randfield v Randfield (1860) 8 HL Cas 225; Ley v Ley (1841) 2 M & G 780; Re Mitchell, Mitchell v Mitchell (1913) 108
LT 180. See also Fetherston v Fetherston (1835) 3 Cl x Fin 67, HL .
7 Home v Pillans (1833) 2 My & K 15, approved in Abbott v Middleton Ricketts v Carpenter, (1855) 21 Beav 143; affd
(1858) 7 HL Cas 68.
8 See Watkins v Williams Haverd v Church, (1851) 3 Mac & G 622; Perry v Merritt (1874) LR 18 Eq 152; Re Jones,
Richards v Jones [1898] 1 Ch 438 at 441; Lloyd v Tweedy [1898] 1 IR 5; Re Dunstan, Dunstan v Dunstan [1918] 2 Ch
304.
9 See [330.204].
10 Constable v Bull (1849) 3 De G & Sm 411 (on further consideration (1852) 22 LJ Ch 182); Re Thomson's Estate,
Herring v Barrow (1880) 14 Ch D 263, CA (Eng) ; Re Sheldon and Kemble (1885) 53 LT 527; Re Last [1958] P 137,
[1958] 1 All ER 316. See also Upwell v Halsey (1720) 1 P Wms 651; Re Brooks' Will (1865) 2 Drew & Sm 362; Re
Holden, Holden v Smith (1888) 57 LJ Ch 648; Roberts v Thorp (1911) 56 Sol Jo 13 (no absolute gift in terms); Re Dixon,
Dixon v Dixon (1912) 56 Sol Jo 445; Re Wilson, Wilson v Wilson (1916) 142 LT Jo 41; Re Cammell, Public Trustee v
A-G (1925) 69 Sol Jo 345. Cf Re Minchell's Will Trusts [1964] 2 All ER 47, where a gift 'for her lifetime, and after her
death if anything should be left over ' was held to be an absolute gift.
11 Re Adam's Trusts (1865) 13 LT 347; Bibbens v Potter (1879) 10 Ch D 733; Re Pounder, Williams v Pounder (1886)
56 LJ Ch 113 (power of disposition inter vivos); Re Sanford, Sanford v Sanford [1901] 1 Ch 939 (general power). In
Borton v Borton (1849) 16 Sim 552, an absolute gift was reduced by a later clause in the will to a life estate, with a power
of disposition by will.
12 Muschamp v Bluett (1617) J Bridg 132; Proctor v Upton (1739) 5 De GM & G 199n; Mortimer v Hartley (1851) 6 Exch
47; Re Banks' Trusts, ex p Hovill (1855) 2 K & J 387; Magee v Martin [1902] 1 IR 367, CA (Ir) . However, the fact that the
testator conceived that he could make the property perpetually inalienable does not alter the force of his words in
describing the donees and their interest: Britton v Twining (1817) 3 Mer 176 at 183.
13 Crumpe v Crumpe [1900] AC 127, HL .
14 Re Stringer's Estate, Shaw v Jones-Ford (1877) 6 Ch D 1, CA (Eng) , where, although there was first an absolute gift,
it was held that, on the whole will, the donee took an estate for life only, with a power of appointment by deed or will, and,
since this power had not been exercised, the limitations over took effect. See also Comiskey v Bowring-Hanbury [1905]
AC 84, HL , where an absolute gift to the testator's wife was held to be subject to an executory gift over at her death to
Page 192
nieces so far as she should not expose of the estate by will in their favour; Shearer v Hogg (1912) 46 SCR 492.
Page 193
Taken/ (ii) Absolute and Life Interests/ (D) Life Interest Enlarged to Absolute Interest
(D) Life Interest Enlarged to Absolute Interest
[330.215]
Clear gift for life in the first instance
Where a gift is made to a person expressly for life, and after his death to be at his disposal, he does not
in general take a greater beneficial interest himself than a life interest1, and even the addition of a right
of absolute disposal during his life may not enlarge his interest to an absolute interest2. If, however, the
words of disposition can be referred to property rather than merely to power, they may have the effect
of enlarging the interest to an absolute interest3.
A bequest to a donee for his absolute enjoyment during his life, and to be disposed of as he thinks fit
after his death, is equivalent to a gift for life with general power of appointment by deed or will, and on
the power being exercised in his own favour4 the donee is entitled to the bequest absolutely5. If there is
no right of disposition on death, the donee has a general power of appointment inter vivos6, and the
unappointed part passes under a gift over7.
1 Nowlan v Walsh Nowlan v Wilde, (1851) 4 De G & Sm 584 at 585 per Knight Bruce V-C . See also Anon (1578) 3
Leon 71 pl 108. Cf Re Minchell's Will Trusts [1964] 2 All ER 47 (cited in [330.214] note 10).
2 Bradly v Westcott (1807) 13 Ves 445 (where the distinction between property and power was discussed; the gift was to
the donee for life, to be at his full, free and absolute disposal during his life); Reith v Seymour (1828) 4 Russ 263
(although the power of disposal was 'either by will or otherwise'); Re Burkitt, Handcock v Studdert [1915] 1 IR 205 (life
interest, and 'at her death to be disposed of as she so wishes'). In these cases the donee took an interest for life only,
with power of disposition. See also Scott v Josselyn (1859) 26 Beav 174 (where the donee for life had power to dispose
of the capital during her life and to appoint by will); Pennock v Pennock (1871) LR 13 Eq 144 (where the donee for life
had power to apply the capital for his own benefit). In each case there was a life estate only, with power of disposition.
See also Re Thomson's Estate, Herring v Barrow (1880) 14 Ch D 263, CA (Eng) . In Henderson v Cross (1861) 29 Beav
216, a gift of residue with power for the donee to spend principal and interest, or any part of it, during his life was an
absolute gift, and a gift over of what he did not spend was repugnant and void. See also [330.213].
3 Nowlan v Walsh Nowlan v Wilde, (1851) 4 De G & Sm 584 at 586. See also Hoy v Master (1834) 6 Sim 568; Reid v
Carleton [1905] 1 IR 147 (where the principle was stated by Barton J). This view has been adopted in cases where the
life interest has been given for the purpose of introducing other limitations, such as to children, and the power of
disposition is to take effect on the failure of these limitations; Goodtitle d Pearson v Otway (1753) 2 Wils 6; Re Maxwell's
Will (1857) 24 Beav 246 at 251.
4 See Re Stringer's Estate, Shaw v Jones-Ford (1877) 6 Ch D 1, CA (Eng) .
5 Re David's Trusts (1859) John 495 at 500, where the fund was in court, and a petition for payment out was equivalent
to an appointment. See also Harvey v Harvey (1842) 5 Beav 134 (full and entire enjoyment of a leasehold held for life to
the cestui que vie).
6 Re Ryder, Burton v Kearsley [1914] 1 Ch 865, CA (Eng) (following Re Richards, Uglow v Richards [1902] 1 Ch 76, and
not adopting the dictum of James LJ in Re Thomson's Estate, Herring v Barrow (1880) 14 Ch D 263, CA (Eng) , that the
donee had only a right to enjoyment in specie). See also Bradly v Westcott (1807) 13 Ves 445.
7 Re Thomson's Estate, Herring v Barrow (1880) 14 Ch D 263, CA (Eng) . See also Pennock v Pennock (1871) LR 13
Eq 144; Re Rowland, Jones v Rowland (1902) 86 LT 78 (as to the 400 see [330.209] note 16); Rosenburg v Scraggs
(1900) 19 NZLR 196; Yates v Yates (1905) 25 NZLR 263.
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Taken/ (ii) Absolute and Life Interests/ (E) Cumulative and Substitutional Gifts
(E) Cumulative and Substitutional Gifts
[330.216]
Gifts clearly cumulative
A testator may well intend to give two or more gifts, of equal or unequal amounts, to the same donee,
and, where the intention to do so is clear, effect is given to it1. The question in each case is what is the
intention collected from the whole will2, and, although rules of construction of wills have been laid down
for assisting in determining whether several legacies to the same person are cumulative or
substitutional, they are applicable only where there is no internal evidence of intention in the
testamentary instrument as, if there is such evidence, it must prevail3.
1 Burkinshaw v Hodge (1874) 22 WR 484. See also Re Dyke, Dyke v Dyke (1881) 44 LT 568 at 570; Re Segelcke,
Ziegler v Nicol [1906] 2 Ch 301, where the additional gift was held not to be reduced by the expression of an intention to
make up the earlier gift to a certain amount, in fact less than the earlier gift.
2 Guy v Sharp (1833) 1 My & Kay 589 at 603. In treating a plurality of writings as constituting a single testamentary
instrument or separate testamentary instruments, the probate is binding on the court of construction: Baillie v Butterfield
(1787) 1 Cos Eq Cas 392; Brine v Ferrier (1835) 7 Sim 549; and see [330.076]. As to when a subsequent gift is subject
to conditions imposed with respect to the first gift see [330.220].
3 Kidd v North (1846) 2 Ph 91 at 97 per Lord Cottenham LC . Thus, where eg two wills are admitted to probate, the court
of construction is entitled to look at both and draw conclusions from internal evidence so provided that a gift in the
second will is substitutional, although the court is not entitled to regard the first will as revoked by the second in toto: Re
Plant, Johnson v Hardwicke, as reported in [1952] Ch 298 at 301. As to a plurality of wills see note 2 above.
[330.217]
Presumption in case of gifts in same instrument
Where two legacies are given by the same testamentary instrument1 to the same person described in
the same terms in each case, and are of the same specific thing or of the same specified amount, the
second is presumed to be merely a repetition of the first2, and prima facie the legatee takes only one
such legacy. However, if such legacies are of different specified amounts3, or have substantially
different incidents4, or if one is a residuary gift and the other a specific or pecuniary legacy5, the second
legacy is presumed to be cumulative, and prima facie the legatee takes both6.
1 As to the treatment of several instruments as a single will see [330.216] note 2.
2 Garth v Meyrick (1779) 1 Bro CC 30; Holford v Wood (1798) 4 Ves 76 at 86, 91; Heming v Clutterbuck (1827) 1 Bli NS
479, HL , where the judgment is based on an alleged finding of the ecclesiastical court that the two instruments were one
will; Brine v Ferrier (1835) 7 Sim 549.
3 Hooley v Hatton (1773) 1 Bro CC 390n; Curry v Pile (1787) 2 Bro CC 225.
4 Mackinnon v Peach (1838) 2 Keen 555; Ford v Ruxton (1844) 1 Coll 403; Inglefield v Coghlan (1845) 2 Coll 247;
Thompson v Teulon Teulon v Teulon, (1852) 22 LJ Ch 243; Wildes v Davies (1853) 22 LJ Ch 495 at 497. See also
Whyte v Kearney (1827) 3 Russ 208. In Manning v Thesiger (1835) 3 My & K 29 (where the times of payment were
different) and Greenwood v Greenwood (1776) 1 Bro CC 31n (one legacy to legatee's separate use), the differences
were not sufficient to render the legacies cumulative.
Page 195
5 Kirkpatrick v Bedford Bedford v Kirkpatrick, (1878) 4 App Cas 96 at 103, 109, HL ; Gordon v Alexander (1858) 4 Jur
NS 1097.
6 For a case of context to the contrary see Yockney v Hansard (1844) 3 Hare 620 (second annuity in substitution for
first).
[330.218]
Presumption in case of gifts in different instruments
If the same specific thing is given by two different testamentary instruments1 to the same person, the
second gift is presumed to be a mere repetition of the first2. Apart from such repeated specific gifts, the
general principle is3 that, if by different testamentary instruments two legacies, whether of the same or
different amounts, are given to the same person, they are presumed to be additional to each other4.
The presumption is strengthened by any substantial difference between the gifts5.
The context of the instruments may, however, lead to a contrary inference6. Thus, where the later gift is
of the same specified amount as the earlier7, and is expressed to be given for the same cause or
motive8, prima facie the later gift is merely a repetition of the first9, and generally, whatever the
amounts of the legacies, where the later instrument purports to explain10, repeat11 or be in substitution
for12 the earlier instrument in respect of the gift, or otherwise to be the final declaration of the testator's
intentions13, the later gift supersedes the earlier.
1 As to what are separate instruments see [330.216] note 2.
2 Duke of St Albans v Beauclerk (1743) 2 Atk 636 at 640 per Lord Hardwicke LC ; Hooley v Hatton (1773) 1 Bro CC
390n per Ashton J (in each case discussing the authorities in the civil law).
3 See the rule briefly stated in Re Davies, Davies v Mackintosh [1957] 3 All ER 52 at 54, [1957] 1 WLR 922 at 925.
4 Foy v Foy (1758) I Cox Eq Cas 163; Ridges v Morrison (1784) 1 Bro CC 389; Baillie v Butterfield (1787) 1 Cos Eq Cas
392; Benyon v Benyon (1810) 17 Ves 34 at 43; Wray v Field (1822) 6 Madd 300 (affd (1826) 2 Russ 257); Mackenzie v
Mackenzie (1826) 2 Russ 262; Lord v Sutcliffe (1828) 2 Sim 273; Robley v Robley (1839) 2 Beav 95 at 101; Tweedale v
Tweedale (1840) 10 Sim 453; Radburn v Jervis Hare v Hill, (1840) 3 Beav 450; Forbes v Lawrence (1844) 1 Coll 495;
Marquis of Hertford v Lord Lowther (1845) 4 LTOS 450; Lee v Pain (1844) 4 Hare 201 at 215, 231; Lobley v Stocks
(1854) 19 Beav 392; Townshend v Mostyn (1858) 26 Beav 72; Johnstone v Earl of Harrowby (1859) 1 De GF & J 183;
Cresswell v Cresswell (1868) LR 6 Eq 69 at 76; Re Davies, Davies v Mackintosh [1957] 3 All ER 52, [1957] 1 WLR 922.
5 Masters v Masters (1718) 1 P Wms 421 at 423; Suisse v Lord Lowther (1843) 2 Hare 424 at 433; Lee v Pain (1845) 4
Hare 201 at 223-224 (legacies carrying interest from different dates and to legatee by different descriptions).
6 The fact that other legacies to other donees in the same will are given in terms expressly making them cumulative is
some indication that legacies not so described as substitutional (Allen v Callow (1796) 3 Ves 289; Barclay v Wainwright
(1797) 3 Ves 462; Russell v Dickson (1842) 2 Dr & War 133 at 139 (affd (1853) 4 HL Cas 293) ), but is of slight
importance in rebutting a presumption applicable to the case (Mackenzie v Mackenzie (1826) 2 Russ 262 at 273; Suisse
v Lord Lowther (1843) 2 Hare 424 at 430). See also Wray v Field (1822) 6 Madd 300. Cf Re Nixon, Askew v Briggs
(1965) 109 Sol Jo 757, where in a home-made codicil the intention to substitute was inferred; Re Resch's Will Trusts, Le
Cras v Perpetual Trustee Co Ltd Far West Children's Health Scheme v Perpetual Trustee Co Ltd, [1969] 1 AC 514, sub
nom Le Cras v Perpetual Trustee Co Ltd Far West Children's Health Scheme v Perpetual Trustee Cop Ltd, [1967] 3 All
ER 915, PC (where a consistent scheme of benefits disclosed by the instruments rebutted the presumption that the
legacies were cumulative). The fact that legacies are given in terms making them substitutional does not make other
legacies not so described substitutional, where the presumption that they are cumulative is otherwise applicable: Re
Armstrong, Ayne v Woodward (1893) 31 LR Ir 154.
7 There is no presumption of repetition raised if in either instrument there is no motive or no motive other than the
testator's own bounty (Suisse v Lord Lowther (1843) 2 Hare 424 at 432), or a different motive expressed, although the
sums are the same, or where the same motive is expressed in both and the legacies are of different amounts (Hurst v
Beach (1821) 5 Madd 351 at 358-359).
8 Duke of St Albans v Beauclerk (1743) 2 Atk 636; Hurst v Beach (1821) 5 Madd 351; Wray v Field (1822) 6 Madd 300 at
303 per Leach V-C ; Suisse v Lord Lowther (1843) 2 Hare 424 at 432 per Wood V-C . For the meaning of 'the same
cause' see Wilson v O'Leary (1872) 7 Ch App 448 at 455, CA (Eng) . Where the gift in each case is to a person by
Page 196
description, for example to 'my servant', the descriptive words are not an expression of motive: Roch v Callen (1847) 6
Hare 531 at 534. See also Suisse v Lord Lowther (1843) 2 Hare 424.
9 Duke of St Albans v Beauclerk (1743) 2 Atk 636 at 640 per Lord Hardwicke LC (adopting the rule of the civil law);
Benyon v Benyon (1810) 17 Ves 34 (to executor for his trouble).
10 Moggridge v Thackwell (1792) 1 Ves 464 at 473 per Lord Thurlow LC .
11 Moggridge v Thackwell (1792) 1 Ves 464 ('simple repetition, where it is exact and punctual, has been regarded as
sufficient proof' that the legacies were not cumulative); Tatham v Drummond (1864) 33 LJ Ch 438. See also Benyon v
Benyon (1810) 17 Ves 34 at 42 (gift of income of trust legacy altered); Hubbard v Alexander (1876) 3 Ch D 738. Thus,
many legacies may be given to the same donees in the same or nearly the same terms as in the prior instrument: Coote
v Boyd (1789) 2 Bro CC 521; Barclay v Wainwright (1797) 3 Ves 462; Whyte v Whyte (1873) LR 17 Eq 50 (instruments
of same date and contents). See also the cases cited in note 12 below. In Wilson v O'Leary (1872) 7 Ch App 448, CA
(Eng) , this was not sufficient in the context and circumstances of that case to rebut the presumption that the legacies
were cumulative.
12 Duke of St Albans v Beauclerk (1743) 2 Atk 636; Jackson v Jackson (1788) 2 Cox Eq Cas 35; Osborne v Duke of
Leeds (1800) 5 Ves 369 at 382; A-G v Harley (1819) 4 Madd 263; Gillespie v Alexander (1824) 2 Sim & St 145; Simon v
Barber (1829) Taml 14; Fraser v Byng (1829) 1 Russ & M 90 at 101-102; Robley v Robley (1839) 2 Beav 95; A-G v
George (1843) 12 LJ Ch 165; Suisse v Lord Lowther (1843) 2 Hare 424 at 437; Kidd v North (1846) 2 Ph 91; Duncan v
Duncan (No 2) (1859) 27 Beav 392; Tuckey v Henderson (1863) 33 Beav 174 (gifts of legacies by different instruments
substitutional); Bell v Park [1914] 1 IR 158, CA (Ir) ; Grealey v Sampson [1917] 1 IR 286, CA (Ir) ; Re Michell, Thomas v
Hoskins [1929] 1 Ch 552, where two codicils of the same date were held to be duplicates of the same instrument; Re
Bagnall, Scale v Willett [1948] WN 324; Re Plant, Johnson v Hardwicke [1952] Ch 298, [1952] 1 All ER 78n (gifts
substitutional).
13 Russell v Dickson (1853) 4 HL Cas 293 (recital that testator had not time to alter will); cf Sawrey v Rumney (1852) 5
De G & Sm 698 (alteration as to a legacy in a will already altered by a previous codicil).
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Administration and Succession/(1) Wills/(4) Construction of Particular Dispositions/ D. Conditional Gifts/ (i) In
General
D. CONDITIONAL GIFTS
(i) In General
[330.219]
Clarity and effect
Where a testator has by any means1 clearly attached conditions2 or obligations to his gifts, his
expressed intention is paramount. However, where the will is not clear, it is a settled rule of construction
that words are not construed as importing a condition (particularly a condition of forfeiture) if they are
fairly capable of another interpretation3.
Words expressing a condition may be treated as being words of limitation4 or as creating merely a trust5
or charge6. A gift on condition that the donee makes certain payments for the benefit of other persons7
or a gift subject to such payments8 is generally construed as constituting those payments a charge on
the property given where, in the circumstances existing at the date of the will, some surplus could remain
out of the property after making the payments, and as constituting the donee a trustee of the property
where no substantial surplus could remain after making the payments at the date of the will9. When the
surplus is appropriate to a purpose which may or may not require the whole of it to be applied, the
question is one of construction of the particular will10.
As in other provisions11 in a will, words may be rejected or supplied or the natural sense of conditions
varied where this is required by the context12, but the court does this with reluctance and words are not
readily inserted which will prevent vesting13.
1 Re Williams, Williams v Williams [1897] 2 Ch 12 at 18, CA (Eng), per Lindley LJ . As to uncertainty in a condition see
[330.058].
2 As to conditions generally see [330.053] and following.
3 Edgeworth v Edgeworth (1869) LR 4 HL 35 at 41 per Lord Westbury . See also Wright v Wilkin (1860) 2 B & S 232 (affd
(1860) 2 B & S 259); Re Gregory, How v Charrington (1935) 52 TLR 130, where there was a gift to a charity on condition
that the charity was not subsidised by the state or by a public or local authority. As to divesting generally see [330.227] and
following. As to imposing a condition when a power of appointment is exercised see Re Neave, Neave v Neave [1938] Ch
793, [1938] 3 All ER 220.
4 Page v Hayward (1705) 2 Salk 570; Pelham-Clinton v Duke of Newcastle [1902] 1 Ch 34, CA (Eng); affd [1903] AC 111,
HL .
5 Oddie v Brown (1859) 4 De G & J 179 at 194; Wright v Wilkin (1860) 2 B & S 232 (affd (1860) 2 B & S 259); Re Hall
(1918) 53 ILT 11. In Re Frame, Edwards v Taylor [1939] Ch 700, it was held that a gift upon condition that the donee
adopted the testator's daughter involved that the donee should receive the property on trust to provide maintenance, and
this was a trust which would be enforced.
6 It is a question of construction in each case whether a charge or a personal obligation is created or whether both are
created: Re Lester, Lester v Lester [1942] Ch 324 at 325, [1942] 1 All ER 646 at 647 per Simonds J .
7 Hodge v Churchward (1847) 16 Sim 71; Cunningham v Foot (1878) 3 App Cas 974, HL ; Re Oliver, Newbald v Beckitt
(1890) 62 LT 533; Re Hazlette [1915] 1 IR 285, CA (Ir) .
8 Hughes v Kelly (1843) 3 Dr & War 482 (settlement); Jacquet v Jacquet (1859) 27 Beav 332; Pround v Pround (1862) 32
Beav 234; Re Cowley, Souch v Cowley (1885) 53 LT 494; Re Scott, Scott v Scott (No 2) (1915) 31 TLR 505 (devise
subject to payment of pensions and allowances).
Page 198
9 Wright v Wilkin (1860) 2 B & S 232 (affd (1860) 2 B & S 259); Bird v Harris (1870) LR 9 Eq 204; A-G v Wax Chandlers'
Co (1873) LR 6 HL 1; Re Corcoran, Corcoran v O'Kane [1913] 1 IR 1 at 7. The refusal to perform the condition or the
death of the donee does not disappoint those entitled under the condition: Re Kirk, Kird v Kirk (1882) 21 Ch D 431, CA
(Eng) . The question has arisen chiefly in cases of charitable gifts of sums payable out of income: see Thetford School
Case (1609) 8 Co Rep 130b.
10 A-G v Wax Chandlers' Co (1873) LR 6 HL 1 at 9-10.
11 As to the general principle in regard to rejecting or adding words see [330.112].
12 Lunn v Osborne Pruen v Osborne, (1834) 7 Sim 56. See also Doe d Leach v Micklem (1805) 6 East 486; Perrin v
Lyon Lyon v Geddes, (1807) 9 East 170; Re Lowry's Will Trusts, Barclay's Bank Ltd v United Newcastle-upon-Tyne
Hospitals Board of Governors [1967] Ch 638, sub nom Re Lowry's Will Trusts, Barclays Bank Ltd v Board of Governors of
the United Newcastle-upon-Tyne Hospitals [1966] 3 All ER 955 (where 'as equivalent charities' was added to make sense
of the words in the will). A condition relating to religion may be varied as respects a minor so as to enable the donee to
make a considered choice: see Re May, Eggar v May [1917] 2 Ch 126; on appeal [1932] 1 Ch 99, CA (Eng) . See also
Patton v Toronto General Trusts Corp [1930] AC 629, PC .
13 Walker v Mower (1852) 16 Beav 365; Hope v Potter (1857) 3 K & J 206; Re Litchfield, Horton v Jones (1911) 104 LT
631 at 632.
[330.220]
Conditions attaching to a series of gifts
A condition attached to the first of a series of gifts may attach only to that one or generally throughout the
series1.
In a gift expressly made 'in the same manner' as another gift, the reference may be to the conditions
attached by the testator2 to the mode of enjoyment only3, and not to the mode of settlement, if any, of
that gift4, or other restrictions5; or the words may refer to all the interests, including gifts over, into which,
under the principal gift, the absolute interest was to be divided6.
1 For examples where the application of a condition to several gifts was in question see Cockrill v Pitchforth (1845) 1 Coll
626; Doe d Bailey v Sloggett (1850) 5 Exch 107; Paylor v Pegg (1857) 24 Beav 105 (gifts commencing with 'likewise')
(distinguishing Boosey v Gardener (1854) 5 De GM & G 122); Gordon v Gordon (1871) LR 5 HL 254; Rhodes v Rhodes
(1882) 7 App Cas 192 at 209, PC ; Re M'Garrity, Ballance and Benson v M'Garrity (1912) 46 ILT 175.
2 The true rule of construction is not to look out for any conditions which may be affixed by law to the donees' interests, but
to give effect, as far as possible, to the words of the will: Ord v Ord (1866) LR 2 Eq 393 at 396.
3 Eg the separate use (Shanley v Baker (1799) 4 Ves 732), or tenancy in common (Lumley v Robbins (1853) 10 Hare 621
at 629; Re Wilder's Trusts (1859) 27 Beav 418), or condition as to marriage, if valid (Younge v Furse (1857) 8 De GM & G
756), attached to the gift referred to.
4 Eames v Anstee (1863) 33 Beav 264 at 267; Re Green, Crowson v Wild [1907] VLR 284.
5 Eg a restriction on the class of persons taking may not be imported: Yardley v Yardley (1858) 26 Beav 38; Pigott v
Wilder (1858) 26 Beav 90; Re Wilder's Trusts (1859) 27 Beav 418. However, see Swift v Swift (1863) 32 LJ Ch 479.
6 Ross v Ross (1845) 2 Coll 269 at 272 per Knight Bruce V-C ; Re Liverpool Dock Acts, Re Colshead's Will Trusts (1852)
2 De G 7 & 690; Auldjo v Wallace (1862) 31 Beav 193; Re Shirley's Trusts (1863) 32 Beav 394; Ord v Ord (1866) LR 2 Eq
393. See also Milsom v Awdry (1800) 5 Ves 465 at 467. There is no inflexible rule on the subject: Pigott v Wilder (1858) 26
Beav 90.
[330.221]
Contingency happening in testator's lifetime

Page 199
Whenever there is an interest validly limited by will, either by way of remainder or by way of executory
interest, and all the preceding estates have failed or determined, and the events on which the interest is
limited have taken effect, it is in general immaterial whether this has happened in the testator's lifetime or
after his death1. Thus, in the case of a gift over on a prior named individual donee dying in any
contingent circumstances2, or dying before any specified time or event3, the gift over as a rule takes
effect if the prior donee so dies during the testator's lifetime4. A gift over on a prior donee dying without
having attained a vested interest takes effect if that prior donee dies in the testator's lifetime, even if he
otherwise satisfies the conditions of the prior gift5. However, on its true construction, a will may be held
to refer only to events taking place after the testator's death or other time6.
1 Varley v Winn (1856) 2 K & J 700 at 705.
2 For example where the gift over is on death before 21 and the prior donee dies during the testator's lifetime not having
attained 21 (Ledsome v Hickman (1708) 2 Vern 611; Perkins v Micklethwaite (1714) I P Wms 274 (death before 21 or
marriage); Northey v Strange (1716) I P Wms 340 at 343; Willing v Baine (1731) 3 P Wms 113), or if the gift over is on
death without issue (Mackinnon v Peach (1838) 2 Keen 555 at 560; Varley v Winn (1856) 2 K & J 700), or on death without
issue who become entitled under an intermediate gift (Rackham v De La Mare (1864) 2 De GJ & Sm 74), or on death
leaving issue (Rheeder v Ower (1791) 3 Bro CC 240).
3 For example on death before payment (Ive v King (1852) 16 Beav 46 at 54), or before division of the estate (Bretton v
Lethulier (1710) 2 Vern 653), or before the legacy becomes payable (Darrel v Molesworth (1700) 2 Vern 378; Walker v
Main (1819) 1 Jac & W 1; Humphreys v Howes (1830) 1 Russ & M 639).
4 If, however, the prior donee dies before the testator but not before the specified event, the gift over does not normally
take effect. As to the general rule in cases of failure of a prior interest see [330.068].
5 Re Gaitskell's Trust (1873) LR 15 Eq 386.
6 Chapman v Perkins [1905] AC 106, HL .

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Administration and Succession/(1) Wills/(4) Construction of Particular Dispositions/ D. Conditional Gifts/ (ii)
Vesting/ (A) Presumption as to Vesting
(ii) Vesting
(A) Presumption as to Vesting
[330.222]
Meaning of 'vest'
The proper legal meaning of 'vest' is vest in interest1. Where a testator uses this word, for example by
directing that the gift is to vest on a certain event, prima facie it must be given its proper legal meaning,
and the gift is then contingent until the happening of the event2, whether the gift is of real or personal
estate3. However, the context may show, by indications that the donee is to take a vested interest
before the specified event, that 'vest' is used in another sense, for example in the sense of 'fall into
possession'4, or 'become payable'5 or 'be indefeasibly vested'6. Where 'vested' means 'indefeasibly
vested', the gift may be vested before the specified event, subject only to being divested if the event
does not happen7. A direction with regard to vesting of a gift to a class may, on the construction of a
particular will, even introduce a new category of persons to share in the gift8.
1 Re Baxter's Trusts (1864) 10 Jur NS 845 at 847; Hale v Hale (1876) 3 Ch D 643 at 646.
2 Glanvill v Glanvill (1816) 2 Mer 38; Russel v Buchanan (1836) 7 Sim 628; Ring v Hardwick (1840) 2 Beav 352; Griffith v
Blunt (1841) 4 Beav 248; Comfort v Austen (1841) 12 Sim 218; Re Thruston's Will Trusts (1849) 17 Sim 21; Re
Blakemore's Settlement (1855) 20 Beav 214; Re Morse's Settlement (1855) 21 Beav 174; Rowland v Tawney (1858) 26
Beav 67; Wakefield v Dyott (1858) 4 Jur NS 1098; Re Arnold's Estate (1863) 33 Beav 163 at 173; Richardson v Power
(1865) 19 CBNS 780, Ex Ch ; Lushington v Penrice Penrice v Lushington, (1868) 18 LT 597; Creeth v Wilson (1882) 9
LR Ir 216 at 223; Re Whiston, Whiston v Woolley [1924] 1 Ch 122, CA (Eng) . See also Re Wrightson, Battie-Wrightson v
Thomas [1904] 2 Ch 95, CA (Eng) , where the testator drew a distinction between vesting and falling into possession;
Parkes (or Keswick) v Parkes (or Keswick) [1936] 3 All ER 653, HL . A provision for maintenance out of 'vested or
expectant' shares in such a case does not alter the meaning of 'vest': Bull v Pritchard (1847) 5 Hare 567 at 572; Re
Thatcher's Trusts (1859) 26 Beav 365 at 369. See also Pickford v Brown Brown v Brown, (1856) 2 K & J 426.
3 Re Featherstone's Trusts (1882) 22 Ch D 111 at 114 per Kay J .
4 Simpson v Peach (1873) LR 16 Eq 208.
5 Williams v Haythorne Williams v Williams, (1871) 6 Ch App 782 at 788. For a case where a distinction was expressly
drawn between vesting and payment in the will see Ellis v Maxwell (1841) 3 Beav 587.
6 Berkeley v Swinburne (1848) 16 Sim 275 at 281-282; Taylor v Frobisher (1852) 5 De G & Sm 191; Poole v Bott (1853)
11 Hare 33 at 37-38; Barnet v Barnet (1861) 29 Beav 239; Re Baxter's Trusts (1864) 10 Jur NS 845; Re Edmondson's
Estate (1868) LR 5 Eq 389; Re Parr's Trusts (1871) 41 LJ Ch 170; Armytage v Wilkinson (1878) 3 App Cas 355 at
372-373, PC ; Best v Williams [1890] WN 189.
7 See the cases cited in note 6 above. As to divesting generally see [330.227] and following.
8 Williams v Russell (1863) 10 Jur NS 168; Draycott v Wood (1856) 5 WR 158; Sheffield v Kennett (1859) 27 Beav 207
(affd 4 De G & J 593) . See also Bickford v Chalker (1854) 2 Drew 327 (where a direction as to vesting was rejected). As
to a gift to a class on contingency generally see [330.157].
[330.223]
Page 201
Early vesting favoured
Where there is a doubt as to the time of vesting, the presumption is in favour of the early vesting1 of the
gift and, accordingly, it vests at the testator's death2 or at the earliest moment after that date which is
possible in the context3, whether it is of real4 or personal5 estate. It is presumed that the testator
intended the gift to be vested, subject to being divested, rather than to remain in suspense6. The
presumption is especially applicable where the interest created is a remainder, the reason being that
keeping the remainder contingent might in many cases exclude the issue of a person intended to take
in tail by the parent's dying before the remainder became vested7. It is also especially applicable where
the donees are the children of a named person as a class8, and where the gift is of a residuary
personal estate or residuary real and personal estate9.
1 The policy of the law favouring early vesting does not justify a contingent gift being misconstrued to make it vest earlier
than the time contemplated by the testator: Re Ransome's Will Trusts, Moberley v Ransome [1957] Ch 348 at 361,
[1957] 1 All ER 690 at 696 per Upjohn J . As to the rules of convenience, which rest on the policy favouring early vesting
see [330.159] and following.
2 A bequest making no reference to time takes effect at the testator's death unless this date would disturb provisions
already made in the will, or unless an intention that the bequest is to operate at a later date clearly appears: Hamilton v
Ritchie [1894] AC 310, HL ; Bernard v Walker (1921) 55 ILT 73, HL .
3 Re Blakemore's Settlement (1855) 20 Beav 214 at 217; Darley v Perceval [1900] 1 IR 129 at 135-136; Ward v Brown
[1916] 2 AC 121, PC . As a will is ambulatory until death (see [330.002]), the testator cannot make a legacy vest at the
date of the will, and a provision to that effect does not prevent lapse: Browne v Hope (1872) LR 14 Eq 343. For the
meaning of 'lapse' see [330.062].
4 Driver d Frank v Frank (1818) 8 Taunt 468, Ex Ch ; Duffield v Duffield (1829) 3 Bli NS 260 at 311, 331, HL ; Re
Wrightson, Battie-Wrightson v Thomas [1904] 2 Ch 95 at 103, CA (Eng) ; Re Blackwell, Blackwell v Blackwell [1926] Ch
223 at 233-234, CA (Eng) ; Bickersteth v Shanu [1936] AC 290, [1936] 1 All ER 227, PC .
5 Brocklebank v Johnson (1855) 20 Beav 205 at 215; Re Merricks' Trusts (1866) LR 1 Eq 551 at 557; Rhodes v Rhodes
(1882) 7 App Cas 192 at 211, PC ; Parkes (or Keswick) v Parkes (or Keswick) [1936] 3 All ER 653, HL .
6 Taylor v Graham (1878) 3 App Cas 1287 at 1297, HL, per Lord Blackburn ; Hickling v Fair [1899] AC 15 at 30, 36, HL ;
Re Grove, Public Trustee v Dixon [1919] 1 Ch 249; Yule's Trustees v Deans 1919 SC 570.
7 Driver d Frank v Frank (1814) 3 M & S 25 at 36 (affd (1818) 8 Taunt 468, Ex Ch ) (following Doe d Comberbach v
Perryn (1789) 3 Term Rep 484 at 494. See also Ives v Legge (1743) 3 Term Rep 448n; Re Watkins, Maybery v Lightfoot
(1913) 108 LT 237 at 240, CA (Eng), per Buckley LJ , who dissented, and whose decision was upheld on appeal sub
nom Lightfoot v Maybery [1914] AC 782, HL .
8 M'Lachlan v Taitt (1860) 2 De GF & J 449 at 454 per Lord Campbell LC ; Selby v Whittaker (1877) 6 Ch D 239 at 249,
CA (Eng), per James LJ and at 251 per Cotton LJ . There may be no reason for the application of the presumption in the
case of a child if all the testator's descendants living at the period of distribution are provided for: Re Deighton's Settled
Estates (1876) 2 Ch D 783, CA (Eng) .
9 Love v l'Estrange (1727) 5 Bro Parl Cas 59; Booth v Booth (1799) 4 Ves 399; Oddie v Brown (1859) 4 De G & J 179 at
194; Pearman v Pearman (1864) 33 Beav 394 at 396; West v West (1863) 4 Giff 198.
[330.224]
Whether condition is precedent or subsequent
The presumption in favour of early vesting1 may assist in determining whether a condition is to be
construed as precedent or subsequent2. On the construction of the particular will it may be plain that a
condition is or is not a condition precedent3, and the same condition may in one case be precedent and
in another be subsequent4. In the first instance the context of the whole will must be considered5, but, if
on construction it is doubtful whether the condition is precedent or subsequent, then the presumption in
favour of early vesting applies6 and the condition is treated as subsequent7.
Page 202
1 As to the presumption in favour of early vesting see [330.223].
2 See Re Lowry's Will Trusts, Barclay's Bank Ltd v United Newcastle-upon-Tyne Hospitals Board of Governors [1967] Ch
638, sub nom Re Lowry's Will Trusts, Barclays Bank Ltd v Board of Governors of the United Newcastle-upon-Tyne
Hospitals [1966] 3 All ER 955, where interests conferred on three charities were held to be future contingent interests
and not vested interests in remainder liable to be divested by an event occurring before they vested in possession.
3 Eg 'provided A marry B', which is clearly a condition precedent: Davis v Angel (1862) 4 De GF & J 524; Fitzgerald v
Ryan [1899] 2 IR 637 at 647, 663, CA (Ir) ; Kiersey v Flahavan [1905] 1 IR 45. See also Re Welstead (1858) 25 Beav
612 (bequest for purchase of nomination); Re Emson, Grain v Grain (1905) 93 LT 104 ('subject to' trustees being
appointed as governors). As to the meaning of and distinction between conditions precedent and conditions subsequent
see [330.054].
4 Robinson v Comyns (1736) Cas temp Talb 164 at 166; Doe d Planner v Scuddamore (1800) 2 Bos & P 289 at 295 per
Lord Eldon CJ and at 297 per Heath J , where it was held that a condition is to be construed as precedent or subsequent
according to the testator's intention; Egerton v Earl Brownlow (1853) 4 HL Cas 1 at 157, 183; Re Kavanagh, Murphy v
Broder (1874) IR 9 CL 123 at 130. It has been suggested that a condition is likely to be a condition precedent, eg where
the condition involves anything in the nature of consideration (Acherley v Vernon (1739) Wiles 153 per Willies CJ ), such
as a release of dower (Wheddon v Oxenham (1731) 2 Eq Cas Abr 546 p 124), or where the nature of the interest is such
as to allow time for the performance of the act before enjoyment, or where the condition is capable of being performed
instantly (Jarman on Wills (8th Edn), 1459). These suggestions are considered in Fitzgerald v Ryan [1899] 2 IR 627 at
646-647. For cases where the allowance of a period of time for the performance of the condition, extending to the life of
the donee, did not prevent the condition being precedent see also Randal v Payne (1779) 1 Bro CC 55; Horrigan v
Horrigan [1904] 1 IR 29 (on appeal [1904] 1 IR 271, CA (Ir) ); Kiersey v Flahavan [1905] 1 IR 45 (cases of devises
conditional on marriage with a named person or into a named family).
5 Egerton v Earl Brownlow (1853) 4 HL Cas 1 at 132, 157; cf Carlton v Thompson (1867) LR 1 Sc & Div 232 at 235, HL .
6 It applies only where the matter is not clear: Hickling v Fair [1899] AC 15 at 27, HL .
7 Egerton v Earl Brownlow (1853) 4 HL Cas 1 at 157, 182-183, 189; Woodhouse v Herrick (1855) 1 K & J 352 at
359-360; Lady Langdale v Briggs (1856) 8 De GM & G 391; Re Greenwood, Goodhart v Woodhead [1903] 1 Ch 749 at
755, CA (Eng) ; Re Blackwell, Blackwell v Blackwell [1926] Ch 223; Bickersteth v Shanu [1936] AC 290, [1936] 1 All ER
227, PC ; Sifton v Sifton [1938] AC 656, [1938] 3 All ER 435, PC .
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Administration and Succession/(1) Wills/(4) Construction of Particular Dispositions/ D. Conditional Gifts/ (ii)
Vesting/ (B) Circumstances Affecting Vesting
(B) Circumstances Affecting Vesting
[330.225]
Postponement of enjoyment only
In addition to the general presumption in favour of early vesting1, particular circumstances may affect
the question whether a gift is vested. Thus, where a condition can be fairly read as postponing merely
the right of possession or of obtaining payment, transfer or conveyance, so that there is an express or
implied distinction between the time of vesting and time of enjoyment, the gift is held to be vested at the
earlier date if the rest of the context allows2. This construction is particularly applicable where the
postponement is for the convenience of the testator's estate3 or is occasioned by the gift of some prior
interest filling up the interval4.
Thus, where the testator suspends the enjoyment until payment of his debts5 or other incident of
administration of his estate6, prima facie the vesting is not suspended until that payment or other event;
the nature of the provision shows that it is merely the enjoyment which is postponed. On the other
hand, there may be an intention clearly expressed7 to suspend vesting until such an event8, and effect
must be given to this intention, however inconvenient the result may be9. Similarly, although vesting of
a legacy (whether pecuniary or residuary) may be postponed until actual payment if the context is clear,
in case of doubt the court interprets a gift apparently vesting on payment as vesting when the legacy
becomes payable10.
1 As to this presumption see [330.223].
2 As to real estate see Montgomerie v Woodley (1800) 5 Ves 522 at 526; Bingley v Broadhead (1803) 8 Ves 415;
Duffield v Duffield (1829) 1 Dow & Cl 268 at 311, HL, per Best CJ ; Snow v Poulden (1836) 1 Keen 186; Peard v
Kekewich (1852) 15 Beav 166 at 171; Dennis v Frend (1863) 14 1 Ch R 271 (donee 'not to become entitled to or take the
estate' until 23). See also Boraston's Case (1587) 3 Co Rep 19a. As to personal estate see Dodson v Hay (1791) 3 Bro
CC 405 at 410; Re Panter, Panter-Downs v Bally (1906) 22 TLR 431. As to a mixed fund see M'Lachlan v Taitt (1860) 2
De GF & J 449, where the children became beneficially interested on the death of the parent. Cf Re McGeorge,Ratcliff v
McGeorge [1963] Ch 544, [1963] 1 All ER 519, where a separate devise and bequest were directed not to 'take effect
until after the death of my wife', and it was held that this direction deferred the vesting in possession (but not its vesting in
interest) until the death of the testator's widow.
3 See the text and notes 5-6 below.
4 See [330.227].
5 Barnardiston v Carter (1717) 3 Bro Parl Cas 64; Tewart v Lawson (1874) LR 18 Eq 490. See also Marshall v Holloway
(1820) 2 Swan 432 at 446 per Lord Eldon LC ; Bacon v Proctor (1822) Turn & R 31 at 40.
6 Eg investment as directed (Sitwell v Bernard (1801) 6 Ves 520) or performance of trusts (Birds v Aksey (1857) 24 Beav
615). A trust for sale of real estate, and for payment of the proceeds to certain donees, ascertained without reference to
the time or other features of the sale, the sale being merely for the purpose of division and for the convenience of the
estate, does not make the sale a condition precedent to vesting of their interests: Parker v Sowerby (1853) 1 Drew 488
(affd on another point (1854) 4 De GM & G 321) . See also Re Raw, Morris v Griffiths (1884) 26 Ch D 601 at 602.
7 In such a case the court does not allow the legatees to be prejudiced by the delay of the executors or trustees: Small v
Wing (1730) 5 Bro Parl Cas 66; Gaskell v Harman (1805) 11 Ves 489; Bernard v Mountague (1816) 1 Mer 422; Astley v
Earl of Essex (1871) 6 Ch App 898.
8 Eg until payment of debts or discharge of incumbrances (Bagshaw v Spencer (1748) 1 Ves Sen 142 at 144; Bernard v
Mountague (1816) 1 Mer 422; Tewart v Lawson (1874) LR 18 Eq 490 at 495; Re Bewick, Ryle v Ryle [1911] 1 Ch 116),
or until sale or getting in of the estate (Elwin v Elwin (1803) 8 Ves 547 (to named persons, if living at time of sale); Blight
v Hartnoll (1881) 19 Ch D 294 (to class of grandchildren living at time of sale)).
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9 Gaskell v Harman (1801) 6 Ves 159; on appeal (1805) 11 Ves 489 at 497.
10 Stapleton v Palmer (1794) 4 Bro CC 490; Gaskell v Harman (1801) 6 Ves 159; Re Kirkley, Halligey v Kirkley (1918)
87 LJ Ch 247.
[330.226]
Contingency in description of donee or subject matter of gift
An estate or interest must remain contingent until there is a person having all the qualifications that the
testator requires and completely answering the description of the object of his bounty given in the will1.
Where the postponement of the gift is on account of some qualification attached to the donee, the gift is
prima facie contingent on his qualification being acquired2. Thus, a gift to a person 'at', 'if', 'as soon as',
'when' or 'provided' he attains a certain age, without further context to govern the meaning of the words,
is contingent and vests only on the attainment of the required age3, this being a quality or description
which the donee must in general possess in order to claim under the gift4. In a similar gift to a class5,
the specified age in general determines the persons who may claim as members of the class6.
However, such words have in various contexts been held not really to import contingency in the sense
of a condition precedent to the vesting, but to have the effect of a proviso or condition subsequent
operating as a defeasance of a vested interest7.
1 Proctor v Bishop of Bath and Wells (1794) 2 Hy Bl 358 (the first son of A that should be bred a clergyman); Leake v
Robinson (1817) 2 Mer 363 at 385; Duffield v Duffield (1829) 1 Dow & Cl 268 at 311, HL, per Best CJ (such children as
should attain 21) (following Stephens v Stephens (1736) Cas temp Talb 228 (such son as should attain 21)); Re Laing,
Laing v Morrison [1912] 2 Ch 386 at 392; Re Astor, Astor v Astor [1922] 1 Ch 364, CA (Eng) ; Re Lowry's Will Trusts,
Barclays Bank Ltd v United Newcastle-upon-Tyne Hospitals Board of Governors [1967] Ch 638, sub nom Re Lowry's Will
Trusts, Barclays Bank Ltd v Board of Governors of the United Newcastle-upon-Tyne Hospitals [1966] 3 All ER 955,
where, on the failure of certain trusts, there was a gift to such specified charities as should then remain as independent
charities. As to the ascertainment of the donee the rules stated in [330.153] and following may determine the vesting: see
Driver d Frank v Frank (1818) 8 Taunt 468, Ex Ch (remainders to second and other sons, vested as they came into
existence).
2 As to persons 'living' at a particular time see Cooper v Macdonald (1873) LR 16 Eq 258, where 'then living' was held to
mean 'who are whose issue may then be living' (cf [330.168] and following), and [330.154]. As to gifts to survivors see
Jones v Davies (1880) 28 WR 455 (where the testator gave all his real and personal estate to his two sons and daughter
in equal shares absolutely, and if his daughter should die without leaving issue, to the survivors of his sons, and it was
held that the survival of the sons was part of the contingency raising the gifts over, and therefore, the sons having
predeceased the daughter, the daughter's estate became indefeasible, although she died without leaving issue). As to
survivorship generally see [330.168] and following. A gift to a survivor itself imports a contingency: Whitby v Von
Luedecke [1906] 1 Ch 783; Re Legh's Settlement Trusts, Public Trustee v Legh [1938] Ch 39, [1937] 3 All ER 823, CA
(Eng) .
3 As to real estate see Re Francis, Francis v Francis [1905] 2 Ch 295 (following Johnson v Gabriel and Bellamy (1588)
Cro Eliz 122, cited as Grant's Case in 10 Co Rep at 50a, and explained in Lampet's Case (1612) 10 Co Rep 46b at 50a);
Love v Love (1881) 7 LR Ir 306 ('on his attaining' 23); Phipps v Ackers (1842) 9 Cl & Fin 583 at 590-591, HL, per Tindal
CJ ; Doe d Wheedon v Lea (1789) 3 Term Rep 41 at 43 per Ashurst J . As to personal estate see Re Edwards, Jones v
Jones [1906] 1 Ch 570 at 573, CA (Eng) ; Re Kirkley, Halligey v Kirkley (1918) 87 LJ Ch 247, where a bequest to
members of a class to be paid if and when they respectively attained the age of 21 was held contingent; Re Shurey,
Savory v Shurey [1918] 1 Ch 263; Re Blackwell, Blackwell v Blackwell [1926] Ch 223, CA (Eng) .
4 Leake v Robinson (1817) 2 Mer 363 at 385-386. Where the will contains a direction to pay, transfer or assign to the
donee on his attaining a specified age, the gift does not vest until that age is attained: Walker v Mower (1852) 16 Beav
365.
5 Judd v Judd (1830) 3 Sim 525; Hunter v Judd (1833) 4 Sim 455. Where there is a gift to a class conditional on
attainment of a specified age and, if there should be only one member of the class, to him, no condition being stated,
with a gift over, it depends upon the terms of the gift over whether the condition attaches to the gift to the one member
only: see Walker v Mower (1852) 16 Beav 365; Johnson v Foulds (1868) LR 5 Eq 268; Re Fletcher, Dor v Fletcher
(1885) 53 LT 813.
6 As to real estate see Duffield v Duffield (1829) 1 Dow & Cl 268, HL ; Newman v Newman (1839) 10 Sim 51; Kennedy v
Sedgwick (1857) 3 K & J 540; Re Astor, Astor v Astor [1922] 1 Ch 364, CA (Eng) . As to personal estate see Leake v
Page 205
Robinson (1817) 2 Mer 363; Bull v Pritchard (1826) 1 Russ 213; Porter v Fox (1834) 6 Sim 485 (mixed fund); Chance v
Chance 16 Beav 572; Merlin v Blagrave (1858) 25 Beav 125; Thomas v Wilberforce (1862) 31 Beav 299; Bowyer v West
(1871) 24 LT 414; Re Williams, Spencer v Brighouse (1886) 54 LT 831. As to the ascertainment of classes see
[330.156].
7 Andrew v Andrew (1875) 1 Ch D 410 at 417, CA (Eng), per James LJ ; Re James (1884) 51 LT 596 at 597; Re
Campbell, Cooper v Campbell (1919) 88 LJ Ch 239; Bickersteth v Shanu [1936] AC 290, [1936] 1 All ER 227, PC . Cf Re
McGeorge, Ratcliff v McGeorge [1963] Ch 544, [1963] 1 All ER 519, where the words 'shall not take effect until after the
death of my wife' merely postponed the vesting in possession.
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Administration and Succession/(1) Wills/(4) Construction of Particular Dispositions/ D. Conditional Gifts/ (iii)
Divesting
(iii) Divesting
[330.227]
Divesting in general
In a doubtful case1 the court leans against the divesting of vested interests2 and favours that
construction which leads to the vesting indefeasibly of the property as early as possible3. In general,
therefore, subject to the intention shown by the will as a whole4, divesting conditions are construed
strictly5, and, where there is a prior vested gift and then a clause divesting the gift in a specified
contingency, the court does not hold the gift divested unless the precise contingency referred to occurs,
and does not introduce other contingencies unless the context requires that course6.
1 The rule is inapplicable where the intention as to divesting is plainly shown: see Re Ball, Slattery v Ball (1888) 40 Ch D
11 at 13, CA (Eng) .
2 Maddison v Chapman (1858) 4 K & J 709 at 721, 723; Re Wood, Moore v Bailey (1880) 43 LT 730 at 732; Re Roberts,
Percival v Roberts [1903] 2 Ch 200 at 204.
3 Minors v Battison (1876) 1 App Cas 428, HL ; Re Teale, Teale v Teale (1885) 53 LT 936 at 937.
4 Lady Langdale v Briggs (1856) 8 De GM & G 391 at 429-430.
5 Fraunces' Case (1609) 8 Co Rep 89b at 90b; Kiallmark v Kiallmark (1856) 26 LJ Ch 1 at 4; Blagrove v Bradshaw (1858)
4 Drew 230 at 235. The principle applies not only to the divesting of vested estates but also to the defeating of contingent
estates: Kiallmark v Kiallmark (1856) 26 LJ Ch 1 at 4. Accordingly, in cases of gifts to children of a named parent, followed
by a gift over if all the children die in the lifetime of their parent, where some but not all survive their parent, all take:
Bromhead v Hunt (1821) 2 Jac & W 459; Gordon v Hope (1849) 3 De G & Sm 351 (settlement); Templeman v Warrington
(1842) 13 Sim 267 at 270 (gift over, if but one child at parent's decease, to that one); Re Firth, Loveridge v Firth [1914] 2
Ch 386; Re Stephens, Tomalin v Tomalin's Trustee [1927] 1 Ch 1, CA (Eng) . As to divesting in the case of a condition
subsequent see [330.224].
6 Tarbuck v Tarbuck (1835) 4 LJ Ch 129; Cox v Parker (1856) 22 Beav 168; Potts v Atherton (1859) 28 LJ Ch 486 at 488;
Re Kirkbride's Trusts (1866) LR 2 Eq 400 at 402; Re Pickworth, Snaith v Parkinson [1899] 1 Ch 602, CA (Eng) ; Re Searle,
Searle v Searle [1905] WN 86.
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Administration and Succession/(1) Wills/(4) Construction of Particular Dispositions/ D. Conditional Gifts/ (iv)
Particular Conditions/ (A) Gifts over in the Event of Death
(iv) Particular Conditions
(A) Gifts over in the Event of Death
[330.228]
The general rule
A gift over of property given to a person absolutely in the event of his death is construed as a gift over
in the event of his death before the period of distribution1 or vesting unless some other period is
indicated by the context2. The rule is based on the ground that, as death is inevitable, it cannot be
deemed a contingency; the testator could not have intended merely to provide for the possibility of the
donee dying. It is also based on the presumption in favour of vesting3.
Therefore, if the gift is immediate and there is a gift over in the event of the donee's death, without any
suggestion of succession, prima facie the gift over takes effect only where the donee dies in the
testator's lifetime, as an alternative gift4, and, if the gift is postponed to a life interest, prima facie the gift
over takes effect only on death before the tenant for life, as an alternative gift5. Alternatively, if the
context so requires, the gift over may be construed as referring to death before vesting6.
However, in some cases the context of the will shows that the first donee takes not an absolute interest
but a life interest only, or that the gift in case of death is to take effect not as a contingent gift but by
way of succession in any event; the second donee then takes on the death of the first donee at any
time7. A gift to one person in the event of the death of another is treated as a gift in remainder or
succession only where the interest of the first taker is a mere life interest8. Where an indefinite gift to
one person is followed by a gift over 'at' or 'after' his death, then prima facie the gift over takes effect, if
at all, by way of succession not contingency9. In such a case it depends on the construction of the will
as a whole whether the prior gift if to be treated as absolute and the gift over as void, or whether the
prior gift is reduced to a life interest10.
Death is regarded as a contingent event only from necessity and where the words import no other
contingency11.
1 For the meaning of 'period of distribution' see [330.160] note 1.
2 Penny v Railways Comr [1900] AC 628 at 634, PC, per Lord Lindley . See also Hodgson v Smithson (1856) 8 De GM &
G 604; O'Mahoney v Burdett (1874) LR 7 HL 388 at 395 per Lord Cairns LC .
3 Home v Pillans (1833) 2 My & K 15 at 20-21.
4 Lord Bindon v Earl of Suffolk (1707) 1 P Wms 96 at 97; Elliott v Smith (1882) 22 Ch D 236; Re Valdez's Trusts (1888)
40 Ch D 159 at 162; Re Reeves, Edwards v Reeves-Hughes (1907) 51 Sol Jo 325; Re Fisher, Robinson v Eardley
[1915] 1 Ch 302, following Howard v Howard (1856) 21 Beav 550. As to alternative gifts see [330.172] and following.
5 Edwards v Edwards (1852) 15 Beav 357 at 363-364 (the third rule there stated is not affected on this point by
O'Mahoney v Burdett (1874) LR 7 HL 388: see [330.229] note 6).
6 Penny v Railways Comr [1900] AC 628, PC ; Re Kerr's Estate [1913] 1 IR 214.
7 Billings v Sandom (1784) 1 Bro CC 393; Jones v Morris (1922) 91 LJ Ch 495. Cf Wilkins v Jodrell (1879) 13 Ch D 564
at 569; Watson v Watson (1881) 7 PD 10. As to the weight to be given to various circumstances see Taylor v Stainton
Page 208
(1856) 2 Jur NS 634.
8 Penny v Railways Comr [1900] AC 628 at 634, PC, per Lord Lindley .
9 Re Adam's Trusts (1865) 13 LT 347.
10 See Lloyd v Tweedy [1898] 1 IR 5 at 17. See also [330.213], [330.214]. If the later gift contains no reference to death
but is introduced merely by words such as 'thereafter', the prior gift is not reduced: Re Gouk, Allen v Allen [1957] 1 All ER
469, [1957] 1 WLR 493.
11 Gawler v Cadby (1821) Jac 346 at 348; Woodroofe v Woodroofe [1894] 1 IR 299 at 302. As to gifts upon death
coupled with a contingency see [330.229].
[330.229]
Gift over on death with contingency
Where a gift over is on death coupled with some contingency, such as on the death of the donee
without leaving issue or without leaving issue living at the time of his death, then prima facie the gift
over takes effect on the donee's death at any time1, and not merely on his death before the date of
distribution2, if the rest of the contingency is fulfilled at his death3. It is immaterial that the donees under
the gift over are the children of the first taker4, and the rule is the same for the real and personal estate5
and whether there is a previous life interest6 or not7.
1 As to contingencies happening in the testator's lifetime see [330.221].
2 For the meaning of 'date of distribution' see [330.160] note 1.
3 Ingram v Soutten (1874) LR 7 HL 408 (dying without issue living at her death); O'Mahoney v Burdett (1874) LR 7 HL
388 (dying unmarried or without children); Woodroofe v Woodroofe [1894] 1 IR 299 at 302 (dying without issue surviving
him); Re Richardson's Trusts [1896] 1 IR 295, CA (Ir) (dying leaving children fatherless); Re Schnadhorst, Sandkuhl v
Schnadhorst [1902] 2 Ch 234, CA (Eng) (dying leaving issue); Duffill v Duffill [1903] AC 491, PC (dying before his
brother); Re Williams Will Trusts, Rees v Williams [1949] 2 All ER 11 (dying without issue surviving her); Re McGrane,
McGrane v McGrane (1964) 198 ILTR 95 (dying before his brother). See also Smith v Stewart (1851) 4 De G & Sm 253;
Smith v Spencer (1856) 6 De GM & G 631, where the original donee took at 21 but the gift over was not restricted to a
death under that age; Drake v Collins (1869) 20 LT 970; Re Parry and Daggs (1885) 35 Ch D 130, CA (Eng) .
4 Home v Pillans (1833) 2 My & K 15 at 22; Re Schnadhorst, Sandkuhl v Schnadhorst [1901] 2 Ch 338 at 343; affd
[1902] 2 Ch 234, CA (Eng) .
5 Slaney v Slaney (1864) 33 Beav 631.
6 The fourth rule in Edwards v Edwards (1852) 15 Beav 357 at 364 and following, enunciated by Romilly MR, to the
effect that, where such a gift is postponed prima facie the gift over refers to a death without issue before the period of
distribution, was disapproved in O'Mahoney v Burdett (1874) LR 7 HL 388, and was not applied in Re Schnadhorst,
Sandkuhl v Schnadhorst [1902] 2 Ch 234, CA (Eng) , or Re Williams' Will Trust, Rees v Williams [1949] 2 All ER 11. The
following case, where the fourth rule in Edwards v Edwards (above) was followed, may perhaps be supported on the
contexts of the wills in question: Wood v Wood (1866) 35 Beav 587.
7 Child v Giblett (1834) 3 My & K 71; Smith v Stewart (1851) 4 De G & Sm 253; Edwards v Edwards (1852) 15 Beav 357
at 363; Cotton v Cotton (1854) 23 LJ Ch 489; Randfield v Randfield (1860) 8 HL Cas 225; Bowers v Bowers (1870) 5 Ch
App 244.
[330.230]
Gift over on death before actual receipts
As a rule, a gift over may be made on the donee dying before he actually receives his legacy or on his
becoming disentitled to receive it before actual payment. If expressed with sufficient certainty, such a
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gift is valid1, as also is any gift where the gift over is of the part of the property which has not been
received2. A gift over on death during the continuance of the trusts of the will may be valid, at least in
the case of a specific gift3.
Such a gift over in the case of residuary gift, and applying to the whole fund, referring to the time when
the fund is 'receivable' or 'de jure receivable' may be void for uncertainty4. There is no objection to
postponing the vesting of a residuary gift until actual receipt5, and there appears to be no sufficient
reason for a different rule in postponing the divesting where the intention is clearly shown6.
The court inclines to construe such gifts over so that the period during which the operation of the gift
over is to extend may not continue beyond the time at which the legacy is by law receivable7, that is, in
general, where the gift is not otherwise postponed, at a year from the testator's death8, and in other
cases at the death of the tenant for life or other period of distribution9. However, this construction
cannot be adopted where the language of the will is precise and refers to actual receipt10.
1 Johnson v Crook (1879) 12 Ch D 639 (approved in Re Chaston, Chaston v Seago (1881) 18 Ch D 218); Bubb v
Padwick (1880) 13 Ch D 517. These cases were considered in Re Petrie, Lloyds Bank Ltd v Royal National Institute for
the Blind [1962] Ch 355 at 365-366, [1961] 3 All ER 1067 at 1071, CA (Eng) .
2 Re Chaston, Chaston v Seago (1881) 18 Ch D 218; Re Goulder, Goulder v Goulder [1905] 2 Ch 100 (explained in Re
Petrie, Lloyds Bank Ltd v Royal National Institute for the Blind [1962] Ch 355, [1961] 3 All ER 1067, CA (Eng) ).
3 Re Teale, Teale v Teale (1885) 53 LT 936.
4 Hutcheon v Mannington (1791) 1 Ves 366 (as explained by Jessel MR in Johnson v Crook (1879) 12 Ch D 639), where
on the construction adopted the gift over was on death before the gift was receivable; Martin v Martin (1866) LR 2 Eq
404; Minors v Battison (1876) 1 App Cas 428, HL ; Bubb v Padwick (1880) 13 Ch D 517; Roberts v Youle (1880) 49 LJ
Ch 744 at 745; Re Hudson [1912] VLR 140.
5 Gaskell v Harman (1801) 6 Ves 159; on appeal (1805) 11 Ves 489 at 497 per Lord Eldon LC , explaining Hutcheon v
Mannington (1791) 1 Ves 366.
6 Notwithstanding the inconvenience, effect may be given to such an intention: see [330.103].
7 Re Sampson, Sampson v Sampson [1896] 1 Ch 630 at 635-636. See also Whiting v Force (1840) 2 Beav 571, where
'receiving' was construed with its correlative 'pay' in the original gift; Rammell v Gillow (1845) 15 LJ Ch 35 at 39; and the
cases in notes 8-9 below. In particular cases an inquiry may be directed as to when the property could have been got in
(Law v Thompson (1827) 4 Russ 92; Re Arrowsmith's Trust (1860) 29 LJ Ch 774), although in Hutcheon v Mannington
(1791) 1 Ves 366 at 367, Lord Thurlow considered such an inquiry impracticable and the gift over void for uncertainty.
8 Re Collison, Collison v Barber (1879) 12 Ch D 834; Re Wilkins, Spencer v Duckworth (1881) 18 Ch D 634 (residue; gift
over before final division of testator's estate); Re Petrie, Lloyds Bank Ltd v Royal National Institute for the Blind [1962] Ch
355, [1961] 3 All ER 1067, CA (Eng) . See also Re Jones, Midland Bank Executor and Trustee Co Ltd v League of
Welldoers [1950] 2 All ER 239, explained in Re Petrie, Lloyds Bank Ltd v Royal National Institute for the Blind (above).
9 Minors v Battison (1876) 1 App Cas 428, HL ; Wilks v Bannister (1885) 30 Ch D 512.
10 Re Petrie, Lloyds Bank Ltd v Royal National Institute for the Blind [1962] Ch 355, [1961] 3 All ER 1067, CA (Eng) .
[330.231]
Gift over on death before legacy is due
A gift over on the death of a donee before the gift becomes due or payable is valid and may take effect
on the death of the donee in the testator's lifetime1. The time at which the gift becomes due or payable
for the purposes of the gift over depends upon the date of distribution contemplated by the will2, but is
susceptible of a variety of interpretations according to the context3. In a gift to children, where the time
for payment is after a life interest on their attaining a certain age or other qualification, for example in
the case of sons at the age of 21 and in the case of daughters at 21 or marriage, the gift is not read as
making the provision for a child contingent on surviving both or either of its parents unless the intention
Page 210
is clearly so expressed4. In such a case a gift over on death before the gift becomes payable is
confined to a death before attaining the age of 21 or other qualification, 'payable' being construed to
mean 'vested', and accordingly the share of a child who attains 21 and dies in the lifetime of his parents
is not divested5.
1 Willing v Baine (1731) 3 P Wms 113; Darrel v Molesworth (1700) 2 Vern 378, accepted as an authority on this point in
Ive v King (1852) 16 Beav 46 at 54.
2 Eg the death of the tenant for life, where the legacy is given after a life interest: Crowder v Stone (1829) 3 Russ 217 at
222. In the case of immediate legacies, the death of the testator was considered to be denoted in Collins v Macpherson
(1827) 2 Sim 87. The expiration of a year from the testator's death may be adopted in particular cases where the context
does not otherwise provide: cf the cases cited in [330.230].
3 Cort v Winder (1844) 1 Coll 320 at 322 per Knight Bruce V-C .
4 As to presumptions in favour of children see [330.119].
5 Emperor v Rolfe (1748-9) 1 Ves Sen 208; Powis v Burdett (1804) 9 Ves 428 (in spite of expressions referring to
'leaving' children); Walker v Main (1819) 1 Jac & W 1 (death before legacy 'due and payable'); Wakefield v Maffet (1885)
10 App Cas 422 at 433, 435, HL . The doctrine of these cases should not be extended: Rammell v Gillow (1845) 15 LJ
Ch 35 at 38 per Wigram V-C , following Whatford v Moore (1837) 3 My & Cr 270 at 289.
[330.232]
Gift over on death before becoming entitled
In a gift over on the death of the donee before becoming entitled, 'entitled' has no definite legal
meaning and may mean either entitled in interest1 or entitled in possession2, according to the context.
A gift over on death before being 'entitled in possession' is, in a context requiring it, capable of being
construed as 'entitled in interest'3.
A gift over the donee's death before attaining a vested interest prima facie refers to death before
vesting in the technical sense4. However, if the context so requires, it may refer to death before taking
possession5 or before having the right to possession6.
1 Re Crosland, Craig v Midgley (1886) 54 LT 238; Re MacAndrew's Will Trusts, Stephens v Barclays Bank Ltd [1964] Ch
704, [1963] 2 All ER 919. See also [330.106] note 4.
2 Re Maunder, Maunder v Maunder [1902] 2 Ch 875 (affd [1903] 1 Ch 451, CA (Eng) ), following Turner v Gosset (1865)
34 Beav 593 at 594.
3 Re Yates' Trusts (1851) 16 Jur 78.
4 Parking v Hodgkinson (1846) 15 Sim 293. The gift over took effect on a class of prior donees failing to come into
existence in Beardsley v Beynon (1865) 12 LT 698.
5 King v Cullen (1848) 2 De G & Sm 252 at 254, where the will showed that a death after vesting, in the technical sense,
was within the testator's meaning; Young v Robertson (1862) 4 Macq 314, HL (gift over to survivors).
6 Sillick v Booth (1841) 1 Y & C Ch Cas 117 at 121, 124.

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Particular Conditions/ (B) Limitations on Failure of Issue
(B) Limitations on Failure of Issue
[330.233]
The statutory rule
In a gift by will, the words 'die without issue', or 'die without leaving issue', or any other words which
may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an
indefinite failure of his issue, are construed to mean a want or failure of issue in the lifetime or at the
time of the death of that person, and not an indefinite failure of issue, unless a contrary intention
appears by the will1.
This rule has been applied to gifts on death 'without leaving male issue'2 but not to like gifts in terms of
'heirs of the body' or 'heirs' even though coupled with words of procreation3. It has been doubted
whether the rule applies to words such as 'in default of issue' or 'on failure of issue' of a named person
not containing, in themselves or by inference from the context, any reference to the death of that
person4; but the fact that the rule contemplates words which may import a failure of issue in the lifetime
of the named person appears to be inconsistent with the doubt. The rule has been held not to apply
where the words referring to dying without issue are combined with other words, such as 'dying under
21'5, and it has been questioned whether it applies to any but an entire failure of issue6.
1 Wills Act 1959 (Act 346) s 22 (which is equivalent to the English Wills Act 1837 s 29). See O'Neil v Montgomery (1861)
12 I Ch R 163; Re Mid-Kent Railway Act 1856, ex p Bate (1863) 11 WR 417; Dowling v Dowling (1866) 1 Ch App 612 at
616; Gwynne v Berry (1875) IR 9 CL 494; Re Chinkery's Estate (1877) 1 LR Ir 296; Re Davey, Prisk v Mitchell [1915] Ch
837, CA (Eng) where it was held on the facts that 'dying without leaving lawful issue' must be ascertained within a life in
being at the testator's death.
2 Re Edwards, Edwards v Edwards [1894] 3 Ch 644, following Upton v Hardman (1874) IR 9 Eq 157. Cf Neville v
Thacker (1888) 23 LR Ir 344.
3 Harris v Davis (1844) 1 Coll 416 at 424 (in case of there being no heir); Re Sallery (1861) 11 I Ch R 236 ('without heirs
or issue'); Dawson v Small (1874) 9 Ch App 651 ('without heirs male of his body lawfully begot'); Re Brown and Campbell
(1898) 29 OR 402 ('without lawful heirs by him begotten'); Re Ross (1901) 1 SRNSW 1 ('without lawful heirs'); Re Leach,
Leach v Leach [1912] 2 Ch 422 at 428 ('without leaving a male heir'); Re Conboy's Estate [1916] 1 IR 51 ('heir or issue').
Cf Dodds v Dodds (1860) 10 I Ch R 476 ('without lawful male heir').
4 Hawkins on Wills (1st Edn) 177; (3rd Edn) 213; Shand v Robinson (1898) 19 NSW Eq 85 at 88. However, for the
contrary view see Neville v Thacker (1888) 23 LR Ir 344 at 357, and Green v Green (1849) 3 De G & Sm 480, where the
contrary appears to have been assumed.
5 Morris v Morris (1853) 17 Beav 198 at 202.
6 Re Thomas, Thomas v Thomas [1921] 1 Ch 306.
[330.234]
Contrary intention
A contrary intention excluding the statutory rule may be shown generally by the context of the will1.
Page 212
1 Green v Green (1849) 3 De G & Sm 480; Green v Giles (1855) 5 I Ch R 25; Neville v Thacker (1888) 23 LR Ir 344;
Weldon v Weldon [1911] 1 IR 177, CA (Ir) (followed in Cowan v Ball [1933] NI 173). See also Re Thomas, Thomas v
Thomas [1921] 1 Ch 306.
[330.235]
Reference to issue taking under prior gifts
The statutory rule1 does not apply where the words of limitation refer to the contingency that no issue
described in a preceding gift should be born or that there should be no issue who should live to attain
the age or otherwise answer the description required for obtaining a vested interest by a preceding gift
to such issue2.
Where, after gifts to particular description of issue, the gift over is 'in default of such issue', the word
'such' cannot, as a general rule, be rejected, and the statutory rule is excluded3.
The statutory rule is also excluded if the failure of issue, expressly or by inference from the will taken as
a whole, is ascertained at a specified death4 or is indefinite5.
1 As to the statutory rule see [330.224].
2 Wills Act 1959 (Act 346) s 22 proviso (which is equivalent to the English Wills Act 1837 s 29). See also Re Bence,
Smith v Bence [1891] 3 Ch 242 at 249, CA (Eng) .
3 Staines v Maddock (1728) 3 Bro Parl Cas 108; Boydell v Stanton Boydell v Morland, (1844) 14 Sim 327 at 344;
Ashburner v Wilson (1850) 17 Sim 204; Bridger v Ramsay (1853) 10 Hare 320.
4 Westwood v Southey (1852) 2 Sim NS 192 at 203; Re Edwards, Jones v Jones [1906] 1 Ch 570, CA (Eng) ,
disapproving Kidman v Kidman (1871) 40 LJ Ch 359 at 360.
5 Bowen v Lewis (1884) 9 App Cas 890.
[330.236]
Rules where the statutory rule does not apply
In general, for gifts not within the statutory rule1 (whether the gift is of real estate or personal estate, or
both together), words importing failure of issue import an indefinite failure of issue at any time, however
remote, unless the context of the will or the nature of the gift2 shows an intention to contrary. A contrary
intention is shown, for example, where the issue is referred to as surviving a living person3, or where
the context shows that 'issue' means 'children'4. Similarly, if the gift over is directed to take effect 'at the
death' of the ancestor (a prior donee under the will), this is some indication, but not a conclusive
indication5, that the failure of issue is confined to the death of the prior donee6. If the gift over could not
reasonably be meant to depend on a general failure of issue, the inference is that a failure at the death
of the named ancestor is intended7.
1 Ie not within the Wills Act 1959 (Act 346) s 22 (see [330.233]), either as being prior to it or as being within s 22 proviso
(cf the Wills Act 1837 (UK) s 29) (see [330.235]): see Re Bence, Smith v Bence [1891] 3 Ch 242, CA (Eng) .
2 King v Withers (1735) Cas temp Talb 117 at 121; Campbell v Harding (1831) 2 Russ & M 390 at 406. Thus, in cases
where the property is a leasehold for lives, the failure must occur within the lives of the cestuis que vie: Low v Burron
(1734) 3 P Wms 262; Campbell v Harding (1831) 2 Russ & M 390 at 406.
3 Baker v Lucas (1828) 1 Mol 481; Gee v Liddell (1866) LR 2 Eq 341.

Page 213
4 Doe d Lyde v Lyde (1787) 1 Term Rep 593; Carter v Bentall (1840) 2 Beav 551; Bryan v Mansion (1852) 5 De G & Sm
737.
5 Walter v Drew (1723) 1 Com 373; Theebridge v Kilburne (1751) 2 Ves Sen 233 at 236; Doe d Cock v Cooper (1801) 1
East 229.
6 Pinbury v Elkin (1719) 1 P Wms 563; Trotter v Oswald (1787) 1 Cox Eq Cas 317; Wilkinson v South (1798) 7 Term
Rep 555; Gawler v Cadby (1821) Jac 346 at 348; Rackstraw v Vile (1824) 1 Sim & St 604, following Doe d King v Frost
(1820) 3 B & Ald 546.
7 Re Rye's Settlement (1852) 10 Hare 106 at 111.

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Particular Conditions/ (C) Forfeiture on Alienation
(C) Forfeiture on Alienation
[330.237]
Object of forfeiture clauses
A life or other limited interest can be validly given subject to a forfeiture clause on bankruptcy or
alienation or on similar events1. Such clauses are construed strictly2. However, words may be used
which compel the court to hold that in the circumstances a forfeiture has been incurred, even though,
apart from the forfeiture clause, the interest has been preserved3. Even in the absence of express
words to that effect, forfeiture is not incurred by a consent to an advance, whether the advance is made
under an express power contained in the will4 or under the statutory power5 of advancement6.
In all cases the burden lies upon those who assert that forfeiture has taken place7.
1 For a forfeiture clause on alienation except an alienation by way of settlement see Re Galsworthy, Galsworthy v
Galsworthy [1922] 2 Ch 558.
2 Re Mair, Williamson v French [1909] 2 Ch 280 at 282 (charge withdrawn before dividends accrued; no forfeiture). See
also Re Sheward, Sheward v Brown [1893] 3 Ch 502 (document on the face of it a charge, but not intended as such; no
forfeiture); Re Evans, Public Trustee v Evans [1920] 2 Ch 304, CA (Eng) ; Re Bell, Bell v Agnew (1931) 47 TLR 401; Re
Walker, Public Trustee v Walker [1939] Ch 974, [1939] 3 All ER 902.
3 Hurst v Hurst (1882) 21 Ch D 278, CA (Eng) (disclaimer by chargee); Re Porter, Coulson v Capper [1892] 3 Ch 481;
Re Baker, Baker v Baker [1904] 1 Ch 157 (charges, even though cancelled by creditors before distribution).
4 Re Hodgson, Weston v Hodgson [1913] 1 Ch 34; Re Shaw's Settlement Trusts, Shaw v Shaw [1951] Ch 833, [1951] 1
All ER 656.
5 As to this statutory power see the Trustee Act 1949 (Act 208) s 37 (which is equivalent to the English Trustee Act 1925
s 32) and TRUSTS (2015 Reissue) [310.354].
6 Re Rees, Lloyds Bank Ltd v Rees [1954] Ch 202, [1954] 1 All ER 7; Re Shaw's Settlement Trusts, Shaw v Shaw [1951]
Ch 833 at 840, [1951] 1 All ER 656 at 659.
7 Cox v Bockett (1865) 35 Beav 48 at 51.
[330.238]
Effect of forfeiture clauses
Whether an act or event causes a forfeiture1 depends on the true construction of the forfeiture clause,
for example whether a definite act on the donee's part is required or whether the clause goes further
and contemplates events where he is passive2. However, there is no forfeiture if there is no loss of the
beneficial right to enjoy the property3 as the payments of income accrue due4, and there is no vesting
of the right in another person5. Forfeiture clauses on alienation prima facie refer to alienation by way of
anticipation and do not, unless so expressed6, refer to dispositions of income already accrued due or
already vested in the donee7. If a doubt arises whether a document of alienation is intended to deal
with income already accrued due or with future income only, the court favours the construction which
prevents a forfeiture8.
Page 215
No forfeiture is caused where the donee, in good faith and not as a contrivance to evade the clause9,
gives a power of attorney or authority to receive the income. However, a power of attorney given for
value as a colourable assignment or for the express purpose of passing the property to a creditor may
cause forfeiture10.
1 As to forfeiture in relation to protective trusts see the Trustee Act 1949 (Act 208) s 38 (the equivalent English provision
is the Trustee Act 1925 (UK) s 33) and TRUSTS (2015 Reissue) [310.355].
2 Re Pozot's Settlement Trusts, Westminster Bank Ltd v Guerbois [1952] Ch 427 at 445, [1952] 1 All ER 1107 at 1117,
CA (Eng) . See also [330.240].
3 Lockwood v Sikes (1884) 51 LT 562; Re Selby, Church v Tancred [1903] 1 Ch 715.
4 Re Sampson, Sampson v Sampson [1896] 1 Ch 630, followed in Re Jenkins, Williams v Jenkins [1915] 1 Ch 46. As to
the effect of such a clause on income accruing due during a conditional discharge in bankruptcy see Re Clark, Clark v
Clark [1926] Ch 833. See generally [170] BANKRUPTCY (2012 Reissue).
5 Re Brewer's Settlement, Morton v Blackmore [1896] 2 Ch 503 (loan of trust fund to tenant for life, who spent it; income
payable to him did not become 'vested in' another person). See also Craven v Brady (1869) 4 Ch App 296 (forfeiture on
being deprived of control of rents; marriage under law before 1883 caused forfeiture); Re Dash, Darley v King King v
Darley, (1887) 57 LT 219 (conviction; no administrator appointed; no forfeiture); Re Beaumont, Woods v Beaumont
(1910) 79 LJ Ch 744 (appointment of receiver caused no vesting in another person); Re Mordaunt, Mordaunt v Mordaunt
(1914) 49 L Jo 225 (debt, although postponed to capital falling into possession, also charged on present income); Re
Crother's Trusts [1915] 1 IR 53. Cf Bonfield v Hassell (1863) 32 LJ Ch 475 (marriage caused no forfeiture of annuity). As
to a clause of forfeiture on the interest being taken in execution see Blackmann v Fysh [1892] 3 Ch 209, CA (Eng)
(receiver).
6 Bates v Bates [1884] WN 129, dissented from, however, in Re Greenwood, Sutcliffe v Gledhill [1901] 1 Ch 887 at 893.
7 Re Stulz's Trusts, ex p Kingsford (1853) 4 De GM & G 404 at 409, where the testator even provided for attempts 'to
anticipate or otherwise assign or incumber' the bequest; Sutton, Carden & Co v Goodrich (1899) 80 LT 765; Re
Greenwood, Sutcliffe v Gledhill [1901] 1 Ch 887.
8 Cox v Bockett (1865) 35 Beav 48; Durran v Durran (1904) 91 LT 819 at 820, CA (Eng) .
9 Croft v Lumley (1858) 6 HL Cas 672 (covenant in lease); Avison v Holmes Penny v Avison, (1861) 1 John & H 530;
Re Swannell, Morice v Swannel (1909) 101 LT 76; Smith v Perpetual Trustee Co Ltd (1910) 11 CLR 148.
10 Doe d Mitchinson v Carter (1799) 8 Term Rep 300; Doe d Duke of Norfolk v Hawke (1802) 2 East 481; Wilkinson v
Wilkinson (1819) 3 Swan 515; Oldham v Oldham (1867) LR 3 Eq 404.
[330.239]
Forfeiture on alienation
Where a forfeiture clause provides for forfeiture on alienation only, no forfeiture is caused by events in
which the beneficiary plays a purely passive role1 or by acts done by other persons against the donee's
will, such as a charging order2, or appointment of a receiver3, or an alienation by order of the court
under its power to authorise dealings with trust property4, or by any proceedings in bankruptcy
commenced by creditors without the occurrence of the donee5. A charge by a tenant for life after a
receiver for him had been appointed in lunacy was void and did not give rise to a forfeiture6.
Unless the clause extends to an attempted assignment, it is not brought into operation by a mere
attempt to assign or by an assignment which is nugatory7. Even where the clause extends to an
attempt to assign, mere negotiations for an assignment8 or the giving of an authority to receive the
income9 are insufficient to bring the clause into operation; but a settlement, although invalid, may give
rise to a forfeiture in such a case10.
1 Re Pozot's Settlement Trusts, Westminster Bank Ltd v Guerbois [1952] Ch 427 at 445, [1952] 1 All ER 1107 at 1117,
CA (Eng) .
Page 216
2 Re Kelly's Settlement, West v Turner (1888) 59 LT 494.
3 Campbell v Campbell and Davis (1895) 72 LT 294.
4 See the Trustee Act 1949 (Act 208) s 59 (which is equivalent to the English Trustee Act 1925 s 57). See also Re Mair,
Richards v Doxat [1935] Ch 562; Re Salting, Baillie-Hamilton v Morgan [1932] 2 Ch 57 and TRUSTS (2015 Reissue)
[310.367].
5 See Whitfield v Prickett (1838) 2 Keen 608; Graham v Lee (1857) 23 Beav 388. See generally [170] BANKRUPTCY (2012
Reissue).
6 Re Marshall, Marshall v Whateley [1920] 1 Ch 284.
7 Re Wormald, Frank v Muzeen (1890) 43 Ch D 630; Re Adamson, Public Trustee v Billing (1913) 109 LT 25 (cases
where a restraint on anticipation made the assignment nugatory).
8 Graham v Lee (1857) 23 Beav 388.
9 Wilkinson v Wilkinson (1819) 3 Swan 515. See also [330.238] note 10.
10 Re Porter, Coulson v Capper [1892] 3 Ch 481; Re Sheward, Sheward v Brown [1893] 3 Ch 502, where no forfeiture
was caused by a document amounting to, but not intended to be an equitable assignment and which could have been set
aside in proceedings for that purpose.
[330.240]
Forfeiture where the donee is a passive or unwilling party
The forfeiture clause may go further and provide for forfeiture if the donee does or suffers any act by
which the income would, but for the provisions of the forfeiture clause, become payable to another1. In
such cases, the use of expressions such as 'suffer' or 'permit' indicate that even a passive attitude of
the donee may suffice to cause forfeiture2. If the clause is restricted to cases where the income would
become payable to or vested in another, no forfeiture is caused by any proceedings which do not have
the effect3; but on the wording of the clause it may in some cases be sufficient if the donee is deprived
of personal enjoyment of the income4.
Where the clause provided for forfeiture if the beneficiary should be unable to give a personal
discharge, no forfeiture was incurred by the appointment of a receiver in lunacy5.
1 This is so where the income is directed to be held on the statutory protective trusts. These also provide for forfeiture if
any event happens by which the beneficiary would be deprived of his right to receive capital or income: see Re
Richardson's Will Trusts, Public Trustee v Llewellyn Evan's Trustee [1958] Ch 504, [1958] 1 All ER 538; Edmonds v
Edmonds [1965] 1 All ER 379n, [1965] 1 WLR 58.
2 Roffey v Bent (1867) LR 3 Eq 759 (charging order); Re Throckmorton, ex p Eyston (1877) 7 Ch D 145, CA (Eng)
(hostile bankruptcy); Re Moore (1885) 17 LR Ir 549 (registration of a judgment); Re Detmold, Detmold v Detmold (1889)
40 Ch D 585 (insolvency); Re Sartoris' Estate, Sartoris v Sartoris [1892] 1 Ch 11, CA (Eng) (receiving order) (followed in
Re Laye, Turnbull v Laye [1913] 1 Ch 298).
3 Re James, Clutterbuck v James (1890) 62 LT 545 (Scottish sequestration; no vesting of property in another); Re Ryan
(1887) 19 LR Ir 24 (execution on cattle); Re Moon, ex p Dawes (1886) 17 QBD 275 (filing of bankruptcy petition, not
followed by adjudication). There was no forfeiture where the beneficiary authorised payment to another of a dividend
which he expected, but the authority was rendered nugatory by the company failing to declare the dividend: Re
Longman, Westminster Bank Ltd v Hatton [1955] 1 All ER 455, [1955] 1 WLR 197.
4 Re Baring's Settlement Trusts, Baring Bros & Co Ltd v Liddell [1940] Ch 737, [1940] 3 All ER 20 (sequestration); Re
Hatch, Public Trustee v Hatch [1948] Ch 592, [1948] 2 All ER 288 (beneficiary residing in enemy territory); Re
Richardson's Will Trusts, Public Trustee v Llewellyn Evans' Trustee [1958] Ch 504, [1958] 1 All ER 538 (equitable charge
created by court order in divorce proceedings); Edmonds v Edmonds [1965] 1 All ER 379n, [1965] 1 WLR 58 (attachment
of earnings order in divorce proceedings).
5 Re Oppenheim's Will Trusts, Westminster Bank Ltd v Oppenheim [1950] Ch 633, [1950] 2 All ER 86. On the ratio of
that decision, that the clause was not intended to operate where the income would remain for the benefit of the donee (cf
Page 217
[330.237]).
Page 218
Administration and Succession/(2) Executors and Administrators/(1) Office of Representative/ A. Introduction
(2)
EXECUTORS AND ADMINISTRATORS
(1) OFFICE OF REPRESENTATIVE
A. INTRODUCTION
[330.241]
Statute
The law of Malaysia requires a grant of representation to be made by the High Court (Civil Division) to the
executor1 or administrator2 of a deceased person who is authorised by such grant to administer the
estate3. The Probate and Administration Act 19594, which is only in force in West Malaysia, governs the
jurisdiction and the power of the court to grant letters of representation. Specific rules govern the
procedure5 to obtain such letters in West Malaysia6.
1 See [330.243], [330.244].
2 See [330.245].
3 'Estate' comprises of assets which the deceased person was competent to dispose in honesty for his own benefit at the
time of his death: A Murugappa Chetty v The Official Administrator of the Estate of Yap Chok (decd) [1933] MLJ 128 at 130
per Thorne AGCJ ; Re Hee Chun Meng [1989] 2 MLJ 310. See also [330.242] note 3.
4 Ie the Probate and Administration Act 1959 (Act 97) (amended by the Probate and Administration (Amendment) Act 1995
(Act A 912)) which is not applicable in Sarawak and Sabah.
5 See RC O 71, 72. As to the powers of the Registrar, Deputy Registrars, Senior Assistant Registrars and Assistant
Registrars of the High Court to hear matters of probate or letters of administration see the Probate and Administration Act
1959 s 77A(1). All First Class Magistrates, other than ex-officio Magistrates, will be Assistant Registrars of the High Court for
the purpose of hearing and determining applications for probate or letters of administration where it appears that the gross
value of the deceased's estate does not exceed RM25,000.000, and will have jurisdiction to grant probate or letters of
administration in those cases accordingly: s 77A(2).
6 In Sarawak the jurisdiction to grant probate and letters of administration is given to the Probate Officer: see Re Ijot bte
Beliku [1966] 1 MLJ 22; Vivien Teo Lian Eng v Ang Leng Tat [1978] 1 MLJ 102, CA (Brunei) ; Ong Ka Kim v Wong Sing
Kiong [1997] 5 MLJ 46; Lim Siok Luan v Theresa Chin Kim Thye [1999] 1 AMR 133; Chieng Soh Geok v Chieng Sing Huat
[1999] 4 AMR 4680.
[330.242]
Meaning of 'personal representative'
A personal representative1 of a deceased person is the person or company entrusted with the
administration2 of the estate3 of that deceased person. The two classes of personal representatives are:
(1) an executor or executrix4; and (2) an administrator or administratrix5; and as regards any liability for
the payment of death duties includes any person who takes possession6 of or intermeddles with the
property7 of a deceased person without the authority of the personal representatives or the High Court8.
Page 219
1 Executors and administrators are collectively described as the personal representatives of a deceased's estate: United
Asian Bank Bhd v Personal Representative of Roshammah (decd) [1994] 3 MLJ 327. 'An administrator is a person who
obtains his authority solely from the grant of letters of administration and to whom representation of the deceased is
committed by the court in default of an executor As he derives his authority and powers from the court, the Probate and
Administration Act 1959 s 60(4), provides that he cannot without previous permission of the court mortgage, charge or
transfer by sale, gift, exchange or otherwise any immovable property situated in any State and for the time being vested in
him; or lease any such property for a term exceeding five years. Whereas an executor is the person appointed by the
testator to execute the will. And as such, he is not required to give a bond or to provide sureties for the due performance of
his duties': Re Estate of Teoh Cheow Choon (decd) [1994] 3 AMR 2438 at 2441 per Vincent Ng J referred to in Re Yap
Boon Eng [2001] 6 MLJ 442.
2 See [330.244] note 8. See also Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will annexed,
of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90; HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ
383.
3 For the purposes of the Probate and Administration Act 1959 (Act 97), 'estate' means all property which if a person died
intestate would vest in the Chief Justice under s 39: s 2.
4 'Executor' means a person to whom the execution of the last will of a deceased person is, by the testator's appointment,
confided and includes a person deemed to be appointed executor as respects settled land: Probate and Administration Act
1959 s 2. 'Will' includes any codicil or other testamentary document and a privileged will valid under the Wills Ordinance
1959 (FM Ord 38 of 1959) s 26, or the corresponding written law in force in Sabah or Sarawak: Probate and Administration
Act 1959 s 2. Note that the Wills Ordinance 1959 (FM Ord No 38 of 1959) has been superseded by the Wills Act 1959 (Act
346) where the word 'will' means a declaration intended to have legal effect of the intentions of a testator with respect to his
property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil and an
appointment by will or by writing in the nature of a will in exercise of a power and also a disposition by will or testament of
the guardianship, custody and tuition of any child.
5 'Administrator' means a person to whom administration is granted: Probate and Administration Act 1959 s 2. The
conditions to be fulfilled in an application for a letter of administration under the Probate and Administration Act 1959 are that
the petitioner must be a lawful beneficiary with an interest in the deceased's estate and that the deceased possessed
property at the time of his death: Ng Sook Hooi v Ng Kim Seng [2001] MLJU 368.
6 'Possession' includes the receipt of rents and profits or the right to receive the same, if any: Probate and Administration
Act 1959 s 2.
7 'Property' includes a thing in action and any interest in movable or immovable property: Probate and Administration Act
1959 s 2. As to intermeddling with the estate see [330.269], [330.270].
8 Probate and Administration Act 1959 s 2.
[330.243]
Meaning of 'executor'
An executor1 is the person appointed, ordinarily by the testator by his will2 or codicil, to administer the
testator's property3 and to carry into effect the provisions of the will.
1 As to the classification of executors see [330.244].
2 For the purposes of the Probate and Administration Act 1959 (Act 97), 'will' includes any codicil or other testamentary
document: see [330.242] note 4.
3 See [330.242] note 7.
[330.244]
Classification of executors
An executor1 can be classified as follows:

Page 220
(1) General executor. Where a person is appointed to administer the testator's whole will and all
the testator's property as well as for all other purposes, such an executor is called a general
executor2.
(2) Special executor. Where the testator limits the appointment of an executor for specified
purposes or specified property3, such an executor is called a special executor and the
direction for such limited appointment has to be clear4.
(3) Executor de son tort. An executor de son tort is a person who takes upon himself the office
of an executor or intermeddles with the estate of the testator without having been appointed
as executor by the testator's will or by a codicil to that will, or without having obtained a grant
of administration from a competent court5.
(4) Executor according to the tenor of the will. Where upon a reasonable construction of the will,
it appears that a particular person has been appointed to perform the essential duties of an
executor, such appointment is sufficient to constitute that person as an executor6.
(5) Executor by representation. A person becomes an executor by representation if he is the
executor of the will of a testator who was himself the sole executor or sole surviving executor
of another testator's will. This chain of representation is broken by an intestacy; the failure of
the testator to appoint an executor; or the failure to obtain probate7, but is not broken by a
temporary grant of administration8 if probate is subsequently granted9.
1 See [330.243].
2 The term usually applies to executors who have the general administration of the estate where there are special executors
for certain specified property.
3 For the purposes of the Probate and Administration Act 1959 (Act 97), an 'executor' includes a person deemed to be
appointed executor as respects settled land: see [330.242] note 4. See also [330.242] note 7.
4 The usual limitation is in the appointment for purposes to administer foreign property. See also [330.252].
5 In Chia Foon Sian v Lam Chew Fah [1955] MLJ 203 an administrator is bound as an executor de son tort by such acts
which have been done by him for the benefit of the estate of the deceased. In Kechik v Habeeb Mohamed [1963] MLJ 127,
CA , the first defendant who granted sub-tenancies prior to letters of administration being granted or extracted, was held to
be an administratrix de son tort administering the estate of her late husband for the benefit of the estate. See also [330.269]
and following. See Guindarajoo a/l Vegadason v Satgunasingam a/l Balasingam [2010] 4 MLJ 842 where the High Court
found a sufficient cause established to revoke the letters of administration granted to the defendant and held that the
defendant was at all material times a trustee or a trustee de son tort although he was neither appointed nor considered
himself as such.
6 Re Syed Hussain bin Omar bin Shahab (decd) [1939] MLJ 69.
7 'Probate' means a grant under the seal of the High Court authorising the executor or executors named in the grant to
administer the testator's estate: Probate and Administration Act 1959 s 2.
8 For the purposes of the Probate and Administration Act 1959 (Act 97), 'administration' includes any letters of
administration issued by the High Court whether general or limited or with will (see [330.242] note 4) annexed or otherwise
authorising the person or persons named in the letters of administration to administer the deceased person's estate in
accordance with law: s 2 (see HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383); and for the meaning of
'administrator' see [330.242] note 5.
9 Probate and Administration Act 1959 s 12(3). As to the chain of representation see [330.289] and following.
[330.245]
Office of Administrator
An administrator1 is a person appointed by a court of competent jurisdiction to administer the property of a

deceased person. The office of administrator is said to be dative, because it derives from such a grant2
whereas the office of executor3 derives from the will of the deceased person4.
Page 221
1 For the meaning of 'administrator' see [330.242] note 5.
2 Re Estate of Teoh Cheow Choon (decd) [1994] 3 AMR 2438.
3 See [330.243], [330.244].
4 Meyappa Chetty v Supramaniam Chetty [1916] 1 AC 603, PC ; Chia Foon Sian v Lam Chew Fah [1955] MLJ 203.
[330.246]
Personal representative as trustee
The expressions 'trust'1 and 'trustee' in the Trustee Act 1949 extend to the duties2 incident to the office of
a personal representative, and 'trustee' where the context of the Trustee Act 1949 so admits, includes a
personal representative3. That Act except where otherwise expressly provided, applies to executorship
and administratorship4, and to this extent the administration of the property of a deceased person,
whether that person dies testate or intestate5, can be regarded as a trust.
1 See the Trustee Act 1949 (Act 208) s 3(1); see also Yong Nyee Fan & Sons Sdn Bhd v Kim Guan & Co Sdn Bhd [1979] 1
MLJ 182, FC .
2 As to the duties of personal representatives see the Probate and Administration Act 1959 (Act 97) s 68; and as to the
powers conferred on personal representatives see the Trustee Act 1949 ss 5, 7.
3 For the purposes of the Trustee Act 1949, 'personal representative' means the executor, original or by representation, or
administrator for the time being of a deceased person: s 3(1).
4 As to the general powers of trustees and personal representatives see the Trustee Act 1949 ss 16-30.
5 For the purposes of the Probate and Administration Act 1959, 'intestate' includes a person who leaves a will (see [330.242]
note 4) but dies intestate as to some beneficial interest in his movable or immovable property: s 2.
[330.247]
Functions and powers of Amanah Raya Berhad
The functions and powers of the Corporation under the name of Amanah Raya Berhad1, are embodied in
the Public Trust Corporation Act 19952. By this Act, all property, rights and liabilities of the Public Trustee3
and the Official Administrator4 is vested in the Corporation5.
The Corporation may:
(1) be appointed to be the trustee of any will or settlement or other instrument creating a trust or
to perform any trust or duty belonging to a class which it is authorised to accept6; or
(2) on its own application or on the application of any other person, be granted probates of will
or letters of administration by the High Court7.
Further, the High Court may, on the application of any person beneficially interested, appoint the
Corporation, if sufficient cause is shown8, in place of all or any existing executors, administrators or
trustees9; or where a person dies intestate his movable and immovable property until administration is
granted in respect of such property vests in the Corporation in the same manner and to the same extent
as it vests in the Probate Judge in England10.
Page 222
1 'Corporation' means Amanah Raya Berhad, a company incorporated under the Companies Act 1965 (Act 125) and
pursuant to the Public Trust Corporation Act 1995 (Act 532) s 3: Probate and Administration Act 1959 (Act 97)) s 2. As to
incorporation of companies see COMPANIES (2011 Reissue) [150.038] and following.
2 The Public Trust Corporation Act 1995 came into force on 1 August 1995. As to the powers, functions and duties of the
Corporation see ss 10-22. See also TRUSTS (2015 Reissue) [310.154]-[310.158].
3 'Public Trustee' means the Public Trustee, Malaysia appointed under the Public Trustee Act 1950 (Act 247) (now
repealed) : Public Trust Corporation Act 1995 s 2. See also s 43.
4 'Official Administrator' means the Official Administrator, Malaysia appointed under the Probate and Administration Act
1959: Public Trust Corporation Act 1995 s 2.
5 Public Trust Corporation Act 1995 s 4. In Selvarajah v Official Administrator [1978] 2 MLJ 108, it was held that the mere
vesting of property in the Official Administrator does not place him in a capacity that he could be sued. See Kwa Hock Kee v
Kwa Kian Seng [1985] 2 MLJ 283 where the Probate and Administration Act (Cap 23, 1970 Edn) (Sing) s 37 which is pari
materia with the Probate and Administration Act 1959 s 39 was cited. See also Sia Ee Fatt v Raj Mohamed s/o NN Abdul
Rahman [1996] 5 MLJ 121 where it was held that as the deceased's property was vested in the Corporation, similarly his
contractual tenancy also vested in the Corporation; Capital Insurance Bhd v Kasim bin Mohd Ali [1996] 2 MLJ 425, CA ,
where a widow who had not yet obtained letters of administration to her deceased husband's estate could not be substituted
for the deceased as a party to a legal action as the estate was vested in the Corporation by virtue of the Probate and
Administration Act 1959 s 39; Government of Malaysia v Taib bin Abdul Rahman [1991] 2 MLJ 174, SC , where at any stage
of any proceedings in the subordinate court, the plaintiff dies intestate and his interests vest temporarily in the Official
Assignee (now known as the Corporation) under the Probate and Administration Act 1959 s 39, until administration is
granted, the court has the discretion under the repealed SCR O 8 r 7(2) (see now RC O 15 r 6(2)(b)) to order that his son or
some other party be made a party to the proceedings, if the court thinks it necessary to ensure that all matters in dispute in
such proceedings may be completely determined and adjudicated upon.
6 Public Trust Corporation Act 1995 s 12(1).
8 Re Vanena Katha Pillay Marican (decd) [1934] MLJ 205, CA (Sing) , where it was held that there was no jurisdiction,
except on sufficient grounds which in that case did not exist, for passing over the executors and making a grant of letters of
administration with the will annexed to the Official Assignee.
10 Probate and Administration Act 1959 s 39. In Lim Cheng Kwang v Sivamalai d/o Sinnathambi [1994] 2 CLJ 59, it was
held that there cannot be an outright transfer of ownership of property, an item of the assets of the administration of the
estate without satisfying the requirements under the Probate and Administration Act 1959 s 39(1). See Re Ramanathan s/o
AR A Nachiappan (Administrator De Bonis Non with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd)
[1998] 2 MLJ 90; Kerajaan Malaysia v Yong Siew Choon [1999] 5 MLJ 28 where the deceased's widow contended that as
there was nothing left in the estate, she had nothing to administer and therefore she could not be the legal representative.
Under the Probate and Administration Act 1959 s 39, the Official Administrator, Malaysia will be the legal representative until
administration is granted.
Page 223
Administration and Succession/(2) Executors and Administrators/(1) Office of Representative/ B. The
Executor/ (i) Appointment of Executor
B. THE EXECUTOR
(i) Appointment of Executor
[330.248]
Appointment
An executor1 is a person appointed by the testator's will2 or codicil to administer the testator's estate and
to carry into effect the provisions of the will. Such appointment may be either express or implied3 in the
following ways:
(1) by the testator expressly in the body of his will4;

(2) by the testator conferring in his will the power to nominate an executor5;
(3) by implication from the testator's will, when the executor is known as an executor according
to the tenor6; or
(4) by statutory provisions7.
The executor may accept or renounce8 the office. A person appointed in the will as an executor cannot
renounce his rights under the will after he has proved the will9 or as to part only of the estate, that is, the
executor must accept or refuse all10. An executor who has acted also may not renounce11. A testator
may also provide for the appointment of alternative executors on the death of his original executors12.
However, where it cannot be gathered from the contents of the will that the person named as trustee in
the will is required to pay the testator's debts and generally to administer the estate, such person is not
entitled to probate13.
1 See [330.243], [330.244].
2 Probate may be granted to an executor appointed by a will: Probate and Administration Act 1959 (Act 97) s 3(1). For the
meaning of 'probate' see [330.244] note 7. For the meaning of 'will' see [330.242] note 4.
3 Probate and Administration Act 1959 s 3(2). The appointment of an executor may be implied in that a person may
become an executor even though he is not expressly referred to as such in the will, eg, where the will provides for a
named individual to carry out certain duties and responsibilities as executor relating to an estate or where it names a
person as trustee to carry out certain functions relating to the getting in of the property of the deceased and attending to
the payment of expenses and distribution of the estate thereafter: Re Lush (1887) 13-PD 20; Re Russel, Re Laird [1892] P
380.
4 See [330.249].
5 See [330.250].
6 Re Syed Hussain bin Omar bin Shahab (decd) [1939] MLJ 69. For instances where persons have been held to be
executors by implication and 'according to the tenor' of the will see Re Russel, Re Laird [1892] P 380 (nominating persons
as trustees 'to carry out this will', and 'for the due execution of this my will', respectively) and Re Lush (1887) 13-PD 20
(naming a person as trustee to 'get in all my property as stated in my will' and 'after paying all my funeral and other
expenses distribute the residue and remainder of my property as stated in my will').
7 See the Probate and Administration Act 1959 ss 4(3), 30. See also [330.251].
8 As to the renunciation of the office of executor see [330.262]-[330.264].
9 Graham v Keble (1813) 2 Dow 17, 3 ER 772, HL.

Page 224
10 Doyle v Blake (1804) 2 Sch & Lef 231.
11 See Rogers v Frank (1827) 1 Y & J 409 and Re Stevens, Cooke v Stevens [1897] 1 Ch 422; affd [1898] 1 Ch 162, CA
(Eng) . Cf Re Bigg's Estate [1966] P 118, [1966] 1 All ER 358 (where the executor's rights had wholly ceased by virtue of
his failure to appear to a citation under the Administration of Estates Act 1925 (UK) s 5(ii) he being resentful of the
situation which had arisen, the court granted administration with the will annexed to the next entitled).
12 See A-G v Hajee Abdul Cader (1883) 1 Ky 616 where the will provided that on the death of the executors named in the
will, the grandsons of the deceased should succeed as executors with the eldest having the first right, and the court duly
appointed the eldest grandson. See also [330.253].
13 As to the failure of executors and the class of persons with a prior right to the grant see the Probate and Administration
Act 1959 s 16 and [330.402]. See also s 67 where the property of the deceased is an asset for the payment of debts.
[330.249]
Express nomination by testator
The testator must name the executor1 in the body of his will2 as any direction outside the body of the will
cannot receive effect3. A testator may appoint any number of executors but representation may not be
granted to more than four persons in regard to the same property4.
1 See [330.243], [330.244].
2 A-G v Hajee Abdul Cader (1883) 1 Ky 616.
3 A direction beneath the testator's signature does not form part of the will and cannot receive effect: see [330.030]. The
appointment of an executor may be express or implied: see the Probate and Administration Act 1959 (Act 97) s 3(2). For
the meaning of 'will' see [330.242] note 4.
4 Probate and Administration Act 1959 s 4(1). For the meaning of 'property' see [330.242] note 7.
[330.250]
Nomination by person other than testator
A testator may authorise another to nominate an executor by his will1, and effect will be given to such
nomination. It would appear that the person authorised to nominate the executor may nominate himself2.
1 In the absence of any provision in the Wills Act 1959 (Act 346) prohibiting such nomination, the testator is at liberty to
gave such authorisation.
2 As to the appointment of trustees see the Trustee Act 1949 (Act 208) ss 40, 41, 45; and TRUSTS (2015 Reissue)
[330.251]
Statutory appointment of executor
If there is a minority interest, or if a life interest arises under the will1 or intestacy2, then the law requires
a minimum of two individuals to be administrators3, or administration4 will be granted to a trust
corporation5 with or without an individual6.
Page 225
1 For the meaning of 'will' see [330.242] note 4.
2 Where there are infant beneficiaries or beneficiaries with a life interest in the estate (see [330.242] note 3) and there is
only one personal representative (see [330.242]), the sole personal representative may apply to the High Court for another
personal representative to be appointed: see the Probate and Administration Act 1959 (Act 97) s 4(3). Such applications
must be made by summons supported by an affidavit and the consent of the person proposed to be added as personal
representative: see RC O 71 r 21. As to the notice of application see [330.323]. As to succession on intestacy generally
3 In Re Lua Kin Suai [1998] 7 MLJ 258 the court dismissed the application of the two administrators to have portions of the
assets of the estate transferred to the first administrator in the absence of any averments in the affidavit of the applicants,
one of whom was the guardian ad litem of the infant children of the deceased. For the meaning of 'administrator' see
[330.242] note 5.
4 For the meaning of 'administration' see [330.244] note 8.
5 'Trust corporation' means the Corporation (see [330.247]), or a company incorporated under the Trust Companies
Ordinance 1949 (Act 100), or the corresponding written law in force in Sabah or Sarawak: Probate and Administration Act
1959 s 2. See also TRUSTS (2015 Reissue) [310.154]-[310.158].
6 Probate and Administration Act 1959 s 4(2). The High Court may in its discretion and for such special reasons as it may
think fit grant administration to one individual; and in granting administration it may act on such prima facie evidence
furnished by the applicant or any other person, as to whether or not there is a minority or life interest, as may be
prescribed: s 4(2) proviso (a), (b). As to such applications see RC O 71 r 21.
[330.252]
Different executors for different properties
It is not uncommon for a testator with property situated in more than one country to appoint different
executors1 for different parts of his estate. He may appoint certain persons as executors of his property
abroad or of his property in a particular country and others of his property in Malaysia, and indeed this is
commonly done. Probate or administration2 in respect of the real estate of a deceased person or any
part of it may be granted either separately or together with probate or administration of his personal
estate, and may also be granted in respect of real estate only where there is no personal estate, subject
to such exception as the will3 or the circumstances of the case require and in any such case a further
grant may be made of the part of the estate so excepted4.
If special executors are appointed by will but do not prove and the general executors succeed in
obtaining a grant of probate which does not reserve power to the special executors to prove, the special
executors, merely by obtaining a limited grant at a later date, cannot invalidate the acts of the general
executors done pursuant to the grant to them5.
Where an executor appointed solely to administer property outside Malaysia, he is entitled to probate in
this country only when a will has been proved and deposited in a court of competent jurisdiction situated
beyond the limits of Malaysia, and a properly authenticated copy of the proved will is produced6.
1 Not more than four persons will be granted representation in regard to the same property: Probate and Administration
Act 1959 (Act 97) s 4(1). As to executors see [330.243] and following.
2 For the meaning of 'probate' see [330.244] note 7. For the meaning of 'administration' see [330.244] note 8.
4 Probate and Administration Act 1959 s 24. See HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383. For the
meaning of 'estate' see [330.242] note 3.
5 As to the right of proving executors to exercise powers see the Probate and Administration Act 1959 s 6. As to the
classification of executors see [330.244].
6 Probate and Administration Act 1959 s 27. Similarly letters of administration may be granted with a copy of the
Page 226
authenticated copy of the letters of administration from abroad: s 27. See also RC O 71 r 46.
[330.253]
Conditional and substituted appointment
A testator may appoint his widow to be his executrix during her widowhood, or his grandsons to succeed
as executors in point of age on the death of the executors named in the will1. He may make the
appointment conditional upon the happening of a certain event, and he may provide for the determination
of the appointment or the substitution of one executor for another upon the happening of a given event.
An order to appoint a new trustee in substitution or in addition to any existing trustee, may be made by
the High Court2 directing any act or in the execution of a trust to be done in the administration of the
estate of the deceased3.
1 A-G v Hajee Abdul Cader (1883) 1 Ky 616. As to the classification of executors see [330.244].
2 RC O 80 r 2(3)(e). See Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457.
3 See the Trustee Act 1949 (Act 208) ss 45(1)(a), 60(1). In Rachael Mei Ling Ong v Dato' Bruno Henry Almeida [1998]
CLJ 71, [1998] 1 AMR 600, it was held that the repealed RHC O 80 r 2(3)(c) (now RC O 80 r 2(3)(c)) is wide enough to
give the court the power to remove or substitute an executor or trustee from such capacity.
Page 227
Executor/ (ii) Persons Eligible for Appointment
(ii) Persons Eligible for Appointment
[330.254]
The choice of executor
It is an established practice to appoint a person who is capable of receiving a grant of representation,

although no restriction whatever exists upon the choice of an executor1.
Representation may be granted to a minor2 or a lunatic3 subject to restrictions4, but the testator may find
it inconvenient to appoint a minor or a lunatic to be an executor. An enemy alien5, foreigner or a
non-resident may be appointed in the absence of statutory prohibition, as the law does not operate to
disqualify and disable absolutely any non-resident from obtaining a grant of letters of administration if he
is otherwise a fit and proper person and circumstances render it expedient that the grant should be made
to him6.
A bankrupt may be appointed as a personal representative7 but this is generally undesirable, although
the Director General of Insolvency8 is empowered to allow a bankrupt to manage the business of his
spouse9.
1 As to executors see [330.243], [330.244].
2 See [330.255].
3 See [330.256].
4 See the Probate and Administration Act 1959 (Act 97) ss 20, 21.
5 See Hendrik Christiaan Van Hoogstraten v Low Lum Seng [1940] MLJ 138.
6 See Re Sevugan Chettiar (decd) [1949] MLJ 255 where it was held that the two petitioners, though out of jurisdiction,
were entitled to probate; Palaniappa Chettiar v S Solai [1961] MLJ 283 where it was held that the Probate and
Administration Act 1959 s 29(c) should be read in the light of s 30, which in the opinion of the court confers a wide
discretion to the attorney of an absent person and that s 29(c) does not operate to disqualify and disable absolutely any
non-resident from obtaining a grant of letters of administration if he is otherwise a fit and proper person and circumstances
render it expedient that the grant should be made to him; Yap Kee Par v Molly Yap [1996] 4 MLJ 219 where the Probate
and Administration Act 1959 s 30 was referred to; Re Chong Swee Lin; Kam Soh Keh v Chan Kok Leong [1997] 4 MLJ
464 where the court granted administration to the children of the deceased who were lawfully entitled to have an interest in
the residuary estate of the deceased, and where a husband's petition to be the administrator of his intestate deceased
'wife's' estate was not allowed because the petitioner had failed to show that he was lawfully married to the deceased; cf
Goh Liew Kee @ Goh Ah Nya v C Moosa bin Haji Abdullah [1993] 1 AMR 215 where the applicant was held to be the
lawful widow of the deceased.
7 See [330.242].
8 Formerly known as the Official Assignee. As to the substitution of the term 'Official Assignee' with that of 'Director
General of Insolvency' see BANKRUPTCY (2012 Reissue) [170.001] note 3 and see also generally [170.294] and following.
9 See the Bankruptcy Act 1967 (Act 360) s 38(1)(e). See also United Asian Bank Bhd v Personal Representative of
Roshammah (decd) [1994] 3 MLJ 327.
Page 228
[330.255]
Minors
Where a minor is appointed as an executor1, he cannot validly exercise the office until he has attained
the age of majority2. The appointment transfers to the minor no interest in the deceased's property, nor
can an inadvertent grant of probate do so.
A minor is not a personal representative3 for any purpose until and unless he obtains the grant upon
attaining the age of majority4.
If the minor is the sole executor, administration with the will annexed must be granted to his guardian or
to such person as the High Court thinks fit until the minor attains the age of majority. If there are more
than one executors and all such executors appointed are minors, administration with the will annexed will
be granted to their guardian until one of the minors attains the age of majority5, and thereafter the
administration will then terminate and the minor who has attained the age of majority will be entitled to
probate. Where one of the executors is an adult jointly appointed with a minor, the adult executor can
execute the will.
1 See [330.243], [330.244].
2 In Malaysia the age of 18 years is the age of majority: see the Age of Majority Act 1971 (Act 21) ss 2, 4 but the Trustee
Act 1949 (Act 208) s 36(2) provides that property will be vested in a person when he attains the age of 21 years or
marrying at a younger age. Note that RC O 71 r 27(5) states that administration for the use and benefit of an infant sole
executor with no interest in the residue of the estate, will subsist until he attains the age of majority.
3 See [330.242].
4 Where the person who would be entitled to representation is an infant, administration for his use and benefit during his
minority will be granted to his parents jointly or his statutory or testamentary guardian or any guardian appointed by a court
of competent jurisdiction: RC O 71 r 27(1)(a). Where the infant has attained the age of 16 years and there is no such
guardian able and willing to act, the infant may nominate any next-of-kin or her husband or his next-of-kin where the infant
is a married woman: O 71 r 27(1)(b). Such administration may be granted to any person assigned as guardian by order of
the Registrar: O 71 r 27(3); but a trust corporation may not be appointed as guardian of an infant: see the Trust
Companies Act 1949 (Act 100) s 31.
[330.256]
Lunatics
No representation1 will be granted to a person of unsound mind2 during the period of his disability, but
where any such person, if of sound mind, would be entitled to representation, letters of administration
with or without the will annexed may be granted to the person to whom care of his estate has been
lawfully committed, or to such person as to the court3 seems fit for the use and benefit of the person of
unsound mind, until he becomes of sound mind and obtains a grant himself4.
Where a party to a probate action is a person under a disability, then, unless the next friend or guardian
ad litem, as the case may be, of that person, has been appointed such friend or guardian by the court5,
the originating summons beginning the action (where that disabled person is a plaintiff) may not be
issued, and an appearance may not be entered for the disabled person in the action where he is a
defendant, intervener or person cited in such probate action) without the consent of the Registrar6.
1 'Representation' means the probate (see [330.244] note 7) of a will (see [330.242] note 4) and administration (see
[330.244] note 8), and the expression 'taking out representation' refers to the obtaining of the probate of a will or of the
grant of administration: Probate and Administration Act 1959 (Act 97) s 2.
Page 229
2 'Person of unsound mind' is not defined in the Mental Health Act 2001 (Act 615). However, Mental Health Act 2001 s 2
provides that 'mental disorder' means any mental illness, arrested or incomplete development of the mind, psychiatric
disorder or any other disorder or disability of the mind however acquired; and 'mentally disordered' will be construed
accordingly.
3 'Court' means the High Court or a judge and includes, in cases where any of them is empowered to act, the Registrar,
Deputy Registrars, Senior Assistant Registrars and Assistant Registrars of the High Court: Probate and Administration Act
1959 s 2.
4 Probate and Administration Act 1959 s 21. As to the restrictions on the grant see s 4. As to the procedure see RC O 71 r
29(1)(a).
5 In relation to a probate action to which a person under disability is a party or in which he intervenes or is cited (see RC O
76 r 4(1), where the person under disability is a patient and a person is authorised under Mental Health Act 2001 (see s
58) to conduct legal proceedings in the name of the patient or on his behalf, the person so authorised is entitled to be next
friend of the disabled person in any probate action to which his authority extends (see RC O 76 r 4(2)). As to what is a
probate action see O 72 r 1(2) and [330.364].
6 RC O 76 r 5(1).
[330.257]
Trust corporation
Where a trust corporation1 is appointed an executor of a will2 whether alone or jointly with another
person, the court3 may grant probate4 to the corporation either solely or jointly with another person as
the case may require and the corporation may act as executor accordingly5. However, representation
may not be granted to a syndic or nominee on behalf of any trust corporation6.
1 For the meaning of 'trust corporation' see [330.251] note 5. See also the Trust Companies Act 1949 (Act 100) ss 9-11
and TRUSTS (2015 Reissue) [310.154]-[310.158].
2 For the meaning of 'executor' and 'will' see [330.242] note 4.
3 For the meaning of 'Court' see [330.256] note 3.
5 Probate and Administration Act 1959 (Act 97) s 13(1). Administration (see [330.244] note 8) may be granted to any trust
corporation either solely or jointly with another person, and the corporation may act as administrator (see [330.242] note 5)
accordingly: s 13(1). As to the procedure see RC O 71 r 30.
6 Probate and Administration Act 1959 s 13(3). For the meaning of 'representation' see [330.256] note 1.
[330.258]
Bankrupts
A bankrupt may be appointed a personal representative but this is generally undesirable1.

Notwithstanding the absence of any statutory restriction as to the actions of a bankrupt executor
appointed by the deceased in his will, the court2 may, if it appears on the application by motion of the
Corporation3 or of any person claiming to be interested in the property4, or having the custody or control
of the property at the time of death of the deceased, or being at that time an attorney or employee of the
deceased, that there is danger that the property may be wasted, appoint the Corporation, or such other
person as the court thinks fit, to be a receiver5 of the property pending a grant of probate or letters of
administration6.
Page 230
Under the law of bankruptcy, the court may on the application of the official administrator7 or any
creditor, summon before it any person whom the court may deem capable of giving information
respecting the beneficiary and his dealings or property8. The order for examination may be removed,
rescinded or varied upon application and the application to rescind must be considered on its merits9.
1 As to the choice of executors see [330.254]. For the meaning of 'personal representative' see [330.242].
3 For the meaning of 'Corporation' see [330.247] note 1.
5 See Re Valliappa Chettiar (decd); Ramanathan Chettiar v Palaniyappan [1969] 2 MLJ 162, FC , where the appointment
of the interim receiver by the High Court on the application of the respondent, one of the beneficiaries of the estate, was
set aside by the Federal Court; Oh Phaik Lin v Choong Lye Hock Estate Sdn Bhd [1986] 1 MLJ 317 where the High Court
granted the order to appoint receivers and managers to act as officers of the court to take possession of the assets of the
alleged partnership pending the trial of the action. As to receivers appointed under the Probate and Administration Act
1959 (Act 97) see ss 45-50.
6 Probate and Administration Act 1959 s 45. See Karuppan Chettiar v Subramaniam Chettiar [1933] MLJ 226 where
pending the grant of letters of administration, the Official Administrator was merely placed in the position of a receiver of
the intestate's estate and he could not be sued; Re Chop Sin Guan Seng [1934] MLJ 1 where bankruptcy proceedings
made against the deceased sole proprietor's firm were misconceived and the receiving order was rescinded; Re Valliappa
Chettiar (decd); Ramanathan Chettiar v Palaniyappan [1969] 2 MLJ 162, FC ; Selvarajah v Official Administrator [1978] 2
MLJ 108 where mere vesting of the property of the deceased in the Official Administrator does not place him in such
capacity that he can be sued. See also RC O 30 r 1.
7 The Official Administrator v Haji Abdul Majid [1939] MLJ 162, where the sale of Malay reservations land by the Official
Administrator to pay a just legal debt was held to be valid.
8 Bankruptcy Act 1967 (Act 360) s 31(1). See United Asian Bank Bhd v Personal Representative of Roshammah (decd)
[1994] 3 MLJ 327 where a bankrupt if allowed by the court, can manage the business of his spouse; Re Chop Sin Guan
Seng [1934] MLJ 1 where the widow who had not actually extracted the grant, could be personally liable if she had made a
loss by carrying on her late husband's business and could be made a bankrupt. See also BANKRUPTCY (2012 Reissue)
[170.134]-[170.136].
9 Re Chops Loh Kee Seng and Loh Chee Seng [1936] MLJ 67.
[330.259]
Debtors
The appointment of a debtor of the testator as executor releases the debt at common law because the
executor cannot sue himself, but equity does not consider the legacy to the debtor as necessary or a
release or extinguishment of a debt. In equity, the debtor is deemed to have repaid the loan to himself as
executor and trustee of the deceased's estate and to be in possession of the full amount of the debt
unless he can prove that the testator clearly and continuously intended to release him of his debt1.
However, subject to any other written law2, a personal representative3 has the same powers to sue in
respect of all causes of action that survive the deceased, and may exercise the same power for the
recovery of debts4 due to him at the time of his death as the deceased had when living5.
1 Sok-Chun Tang v Vincent Tang Fook Lam [1999] 2 MLJ 274.
2 There are four situations where the personal representative cannot sue on behalf of the estate of the deceased in
respect of all causes of action which survive the deceased, namely in actions for defamation, seductions or inducing one
spouse to leave the other or in a claim for damages on the grounds of adultery: Civil Law Act 1956 (Act 67) s 8(1).
3 For the meaning of 'personal representative' see [330.242].

Page 231
4 Datin Peggy Lilian Taylor v Leong Yuet Yeng [1985] 2 MLJ 456 where the administratrix had the necessary capacity to
sue when the writ was filed and she could give a valid receipt for the debts.
5 Probate and Administration Act 1959 (Act 97) s 59.

Page 232
Executor/ (iii) Acceptance of the Office of Executor
(iii) Acceptance of the Office of Executor
[330.260]
Acceptance of office
Upon acceptance of the office, the executor1 has to do such acts with reference to the testator's estate
which would constitute acceptance. Where an executor has accepted his office as an executor, he may
not thereafter renounce it2.
Any person who assume the office of an executor and acts as one by dealing with the affairs of the
testator or who acts as executor de son tort3, would have accepted the office of executor.
Where probate is granted to one or more persons named as executors, such co-executors have joint and
entire authority over the whole of any movable property and the acts of any one of them are deemed to
be the acts of all of the executors for the purposes of administration4, in the absence of any direction to
the contrary in the will or grant of administration5.
1 See [330.243], [330.244].
2 As to renunciation of the office of executor see [330.262] and following. The court (see [330.256] note 3) may at any time
allow the person so renouncing to withdraw his renunciation for the purpose of taking a grant, if it is shown that the
withdrawal is for the benefit of the estate (see [330.242] note 3) or of those interested under the will (see [330.242] note 4)
or intestacy: Probate and Administration Act 1959 (Act 97) s 10 proviso. See Chia Foon Sian v Lam Chew Fah [1955] MLJ
203.
3 See [330.244].
4 Look Chun Heng v Asia Insurance Co Ltd [1952] MLJ 33.
5 S Rengasamy Pillay v Sadhu Pakirswamy [1937] MLJ 77, CA .
[330.261]
Effect of acceptance
An executor1 cannot refuse to accept in part and refuse in part. He must accept or refuse the office as a
whole2 or where the appointment is limited3, to the full extent of the appointment.
However, if an executor neglects to apply for probate after the death of the testator, the executor may
lose his absolute right to the appointment by reason of his neglect and can be passed over4.
Where probate is granted to one or more persons named as executors, such co-executors have joint and
entire authority over the whole of any movable property5 and the acts of any one of them are deemed to
be the acts of all of the executors for the purposes of administration6, in the absence of any direction to
the contrary in the will or grant of administration7.
1 See [330.243], [330.244].

Page 233
2 See Re Perry (1840) 2 Curt 655; Re Delacour (1874) 9 IR Eq 86.
3 As to letters administration with will annexed granted to the duly authorised attorney of an absent executor see the
Probate and Administration Act 1959 (Act 97) s 29. See also Re Ramanathan s/o AR A Nachiappan (Administrator De
Bonis Non with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90.
4 Re Vanena Katha Pillay Marican (decd) [1934] MLJ 205, CA (Sing) ; Re Hameed Nachial (decd) [1937] MLJ 98, CA .
5 Look Chun Heng v Asia Insurance Co Ltd [1952] MLJ 33.
6 See S Rengasamy Pillay v Sadhu Pakirswamy [1937] MLJ 77, CA ; Look Chun Heng v Asia Insurance Co Ltd [1952]
MLJ 33.
7 Unless the court otherwise directs, no sale, transfer, conveyance or assent in respect of immovable property is made
without the concurrence of all the personal representatives of the deceased; and subject as aforesaid, where there are
several personal representatives the powers of all may, in the absence of any direction to the contrary in the will or grant of
administration, be exercised by any one of them: Probate and Administration Act 1959 s 60(2) (however, it is not, and has
never been the law that the sale of the property belonging to the deceased cannot be transacted without the consent of the
beneficiaries of that estate: Lau Yoke Hee v Ting Liang Teng [2005] 3 CLJ 770, CA following Itam binti Saad v Chik binti
Abdullah [1974] 2 MLJ 53). See S Rengasamy Pillay v Sadhu Pakirswamy [1937] MLJ 77, where all proving executors
were required to be joined as plaintiffs when they sued in such capacity; Dr Ang Eng Lip v June Daniel Amaranickrama
[1997] 5 CLJ 148, where in the case of letters of administration the Probate and Administration Act 1959 s 60(2) did not
apply as the term 'clinic' was not within the definition of immovable property pursuant to the Interpretation Acts 1948 and
1967 (Act 388) s 3 as the said term was not a land and permanent attachment pursuant to such as a building, but was
merely an asset owned by a company.
Page 234
Executor/ (iv) Renunciation of the Office of Executor
(iv) Renunciation of the Office of Executor
[330.262]
Power to renounce
Express renunciation by an executor1 of his right to representation2 may be made orally by the executor
or his advocate on the hearing of any petition or probate action3 or in writing signed by the executor and
attested by an advocate or by any person before whom an affidavit may be sworn4. However,
renunciation of probate by an executor will not operate as renunciation of any right which he may have to
a grant of administration in some other capacity unless he expressly renounces such right5. Unless the
Registrar otherwise directs, no person who has renounced administration in one capacity may obtain a
grant of administration in some other capacity6.
1 As to express renunciation see the Probate and Administration Act 1959 (Act 97) s 8(1). For the meaning of 'executor'
see [330.242] note 4. The court has power to summon any person named as executor to renounce: see s 40.
2 For the meaning of 'representation' see [330.256] note 1.
3 'Probate action' means a cause or matter in which a petition for probate or administration is contested by any person,
and includes an application to alter or revoke any grant of representation: Probate and Administration Act 1959 s 2. For the
meaning of 'probate' see [330.244] note 7. For the meaning of 'administration' see [330.244] note 8. See Debaroti Das
Gupta v Deb Brata Das Gupta [2015] 7 MLJ 605, where it was held that the definition of a 'probate action' in the Probate
and Administration Act 1959 s 2, includes an application to alter or revoke any grant of representation. In this case, it was
held that the plaintiffs' application for an additional administrator to be appointed, effectively asked the court to alter the
grant of representation. The application clearly fell under the definition. Further, the entire pleading in the plaintiffs'
statement of claim which referred to the deceased estates in the will which had been previously probated as the basis of
her claim was a probate cause or matter under the definition. Hence, the plaintiffs' application was a probate action.
4 Probate and Administration Act 1959 s 8(2). On an application for a grant of administration the affidavit in support of the
originating summons must state whether, and if so, in what manner all persons having a prior right to a grant have been
cleared off (ie whether they have renounced their rights): RC O 71 r 5(2). Any such renunciation must be in writing (ie in
App A Form 160): O 71 r 31(4); and must be filed together with the petition.
5 RC O 71 r 31(1).
6 RC O 71 r 31(2). As to the effect of renunciation see the Probate and Administration Act 1959 s 10.
[330.263]
Constructive renunciation
Any person having or claiming any interest in the estate1 of a deceased person, or any creditor of a
deceased person, may, without applying for representation2, cause to be issued a citation3 directed to
the executor4 or executors appointed by the deceased's will5, or to any person appearing to have a prior
right to representation, calling upon the person cited to accept or renounce the right6.
Any person so cited may enter an appearance to the citation, but if he makes default in appearance to
the citation, he will be deemed to have renounced the right; and if, having appeared, he does not
proceed to apply for representation, the person so citing may apply for an order that the person cited,
Page 235
unless he applies for and obtains a grant within a time limited by the order, will be deemed to have
renounced his right to representation7.
If the court8 is satisfied that any person who is or may become entitled to representation has been
personally served with the notice of hearing9 for the grant of representation, and the person fails to
appear or file any objection, he is deemed to have renounced his right of representation10.
3 As to citation see [330.316] and following.
6 Probate and Administration Act 1959 (Act 97) s 9(1).
7 Probate and Administration Act 1959 s 9(2).
9 See Practice Direction No 4 of 1981.
[330.264]
Withdrawal of renunciation
A renunciation may be withdrawn without the leave of the court if it has not yet been filed in the principal
or a district probate registry1. However, if it has been filed in the relevant registry, an order of the court2
is required to withdraw the renunciation3. In situations where, after the renunciation, a grant of
representation has been issued to the next eligible person, the court may only allow withdrawal of the
renunciation in exceptional circumstances4.
Where an executor5 who has renounced probate6 has been permitted to withdraw the renunciation and
prove the will7, the probate will take effect and be deemed always to have taken effect without prejudice
to the previous acts and dealings of and notices to any other personal representative8 who has
previously proved the will or taken out letters of administration and a memorandum of the subsequent
probate will be indorsed on the original probate or letters of administration9.
1 Re Morant (1874) LR 3 P & D 151.
2 For the grounds upon which withdrawal will be allowed see Re Stiles [1898] P 12 (proving executor absconded after
probate; co-executor allowed to retract renunciation); Re Thacker [1900] P 15 (renunciation of right to administration by
widow and children of bankrupt intestate; grant to official receiver; debts paid; grant to official receiver revoked; widow and
children permitted to retract renunciation and grant made to them) and Re Heathcote [1913] P 42 (death of wife intestate;
renunciation by husband and grant to husband's trustee in bankruptcy; termination of bankruptcy; grant to trustee revoked;
grant made to husband).
3 Melville v Ancketill (1909) 25 TLR 655, CA (Eng) .
4 See RC O 71 r 31(3) proviso.
7 See Re Aboo Oosman (1878) 2 Ky Ecc 26. For the meaning of 'will' see [330.242] note 4.
Page 236
9 Probate and Administration Act 1959 (Act 97) s 11(1). A renunciation may be withdrawn may be retracted at any time by
leave of the court in accordance with the provisions of section 10 of the Act: RC O 71 r 31(3). In a situation where after the
renunciation, a grant of representation has been issued to the next eligible person, the court may only allow withdrawal of
the renunciation in exceptional circumstances: O 71 r 31(3) proviso.
Page 237
Executor/ (v) Executor's Acts before Grant
(v) Executor's Acts before Grant
[330.265]
Source of executor's title
The office of an executor1 derives from the will of the testator if he has been appointed or is deemed to
have been appointed executor by the will of the testator and not from any grant of probate, but not if he
has been appointed by the court under statutory powers2. The grant of probate merely authenticates his
title as evidence of his position as executor. The personal property of the testator, including all rights of
action vests3 in him upon the testator's death, and the consequence is that he can institute an action in
the character of executor before he proves the will. He cannot obtain a decree before probate, but this is
not because his title depends on probate, but because the production of probate is the only way in which
he is allowed to prove his title4.
1 See [330.243], [330.244].
2 As to the statutory appointment of executors see the Probate and Administration Act 1959 (Act 97) s 4(3) and [330.251].
3 The word 'vests' usually means vest in interest rather than vest in possession: see Ho Giok Chay v Nik Aishah [1961]
MLJ 49 at 51 per Hepworth J . See also Woolley v Clark (1822) 5 B & Ald 744, [1814-23] All ER Rep 584.
4 Meyappa Chetty v Supramaniam Chetty [1916] 1 AC 603, PC .
[330.266]
Relation back of acts done before probate
Before probate an executor1 may generally do all things2 pertaining to his office such as:
(1) pay or release debts;

(2) get in or receive the testator's estate;
(3) assent to a legacy;
(4) intermeddle with the testator's goods;
(5) distrain for rent3;
(6) demise;
(7) make a conveyance or assignment of the deceased's assets4;
(8) give a valid receipt for money payable upon an assignment;
(9) begin an action as executor before probate5;
(10) present a petition in bankruptcy as executor of testator's creditor or to wind up a limited
company before probate; and
(11) maintain an action in respect of property which he has been in actual possession.
1 See [330.243], [330.244].
2 In Mohamed Ibrahim v Lim Tuan Hong [1960] MLJ 180, a case on intestacy, the tenancy was extinguished as there was
Page 238
no one in whom the tenancy could vest, and the subsequent grant of letters of administration could not operate by virtue of
the relation back to include in the estate the tenancy which had been extinguished.
3 See Kechik v Habeeb Mohamed [1963] MLJ 127, CA , where the court held that the appointment of the administratrix de
son tort related back so as to enable her to grant valid tenancies; Fatimah v Moideen Kutty [1968] 1 MLJ 3, CA , where the
personal representative did not have any right to distrain for arrears of rent pertaining to the temporary structure built on
state land held under a temporary occupation licence.
4 Khoo Cheong Puay v The Oversea Chinese Banking Corp Ltd [1935] MLJ 93.
5 Soo Bian Joo v Soo Boon Leong (1958) 3 MC 236.
[330.267]
Proceedings taken before probate
An executor1 may begin an action as executor before probate2 but he cannot proceed beyond the stage
where it becomes necessary for him to prove his title by the production of the grant of probate3, as the
only evidence of his title is the grant, and he cannot compel a purchaser to complete a conveyance or
assignment until after probate has been obtained4. Further before the grant is extracted, the High Court
is entitled to substitute an executor with another5.
1 See [330.243], [330.244].
2 See Lee Han Tiong v Tay Yok Swee [1997] 1 SLR 289, where the principle that an administrator cannot bring an action
until a grant of letters of administration has been issued does not apply to an executor; P Govindasamy Pillay & Sons Ltd v
Lok Seng Chai [1961] MLJ 89; Singapore Gems Co v The Personal Representatives for Akber Ali (decd) [1992] 2 SLR
254. See also Wong Moy (administratrix of the estate of Theng Chee Khim (decd)) v Soo Ah Choy [1996] 3 SLR 398, CA
(Sing) .
3 The only way an executor can prove his title is after the extraction of the grant of probate from the court: see Valliammai
Achi v Nachiappa Chettiar [1957] MLJ 27, CA , where in the absence of a local grant of probate the third party proceeding
against a foreign executrix was held a nullity.
4 Under the National Land Code (Act No 56 of 1965) s 346, a personal representative is required to register the vesting of
the land comprised in the deceased's estate as representative before he can execute any instrument of dealing in respect
of such land and the grant of probate or a certified true copy of the grant is required to be furnished to the registrar of the
land office or land registry at the time of such presentation for registration.
5 See Foo Nyit Tse v Yew Chee Seong [1934] MLJ 204, CA .
[330.268]
Executors's liability for acts done before probate
In the event an executor1 elects to act, he may be sued before probate and cannot afterwards
renounce2, but the High Court will not allow an action to be brought against one appointed executor who
has never meant to act, before he has had an opportunity to renounce3, nor will it make an order for
general administration in the absence of a duly constituted legal personal representative.
1 See [330.243], [330.244].
2 As to renunciation of the office of executor see [330.262] and following.
3 As to renunciation of probate and administration see RC O 71 r 31.

Page 239
Page 240
Administration and Succession/(2) Executors and Administrators/(1) Office of Representative/ C. The
Executor de Son Tort/ (i) Intermeddling with the Estate
C. THE EXECUTOR DE SON TORT
(i) Intermeddling with the Estate
[330.269]
Executor de son tort
An executor de son tort1 is deemed to intermeddle2 with the assets of the deceased if there is an
assumption of the authority or intention to exercise the functions of an executor or administrator3.
Whether an executor de son tort has intermeddled is a question of fact4 and the result of that
intermeddling is a matter of law5.
If an executor de son tort is the executor named under the will, he will not be allowed to renounce his
right to probate6. Such person can be cited to take probate of the will7 even if he seems to be an
undesirable person to be an executor8. However, an executor de son tort who is not an appointed
executor cannot be so compelled to take out letters of administration for the estate9. An administrator is
bound by such of his acts as executor de son tort which were done for the benefit of the estate10.
1 See [330.243].
2 Singapore Gems Co v The Personal Representatives for Akber Ali (decd) [1992] 2 SLR 254.
3 As to executors and administrators see [330.243] and [330.245] respectively.
4 Ong Ah Goh v Kuan Keh Lan [1968] 2 MLJ 57, where the court held that the two sole beneficiaries of the deceased were
not executors de son tort as they proved that the deceased's share in the partnership business was given to them by the
deceased during his lifetime as a gift inter vivos.
5 In the absence of a legal personal representative, the High Court may view a person who verifies and lodges in the
account list and statement of assets and liabilities of the deceased debtor who had been adjudged a bankrupt, as an
executor de son tort: Bankruptcy Rules 1969 (PU (A) 199/1969) r 233. See also BANKRUPTCY (2012 Reissue) [170.289].
6 See Holder v Holder [1968] Ch 353, [1968] 1 All ER 665, CA (Eng) .
7 Re Lister (1894) 70 LT 812, 58 JP 481.
8 Re Coates (1898) 78 LT 820.
9 Re Davis (1860) 4 Sw & Tr 213, 29 LJPM & A 72.
10 Chia Foon Sian v Lam Chew Fah [1955] MLJ 203 (Sing) . See Guindarajoo a/l Vegadason v Satgunasingam a/l
Balasingam [2010] 4 MLJ 842 where the High Court found a sufficient cause established to revoke the letters of
administration granted to the defendant and held that the defendant was at all material times a trustee or a trustee de son
tort although he was neither appointed nor considered himself as such.
[330.270]
Slight acts of interference sufficient
The slightest circumstance may make a person executor de son tort1 if he intermeddles with the assets
Page 241
in such a way as to denote an assumption of the authority or an intention to exercise the functions of an
executor or administrator2.
1 Singapore Gems Co v The Personal Representatives for Akber Ali (decd) [1992] 2 SLR 254. As to executors de son tort
see [330.244], [330.269].
2 Chia Foon Sian v Lam Chew Fah [1955] 21 MLJ 203. As to executors and administrators see [330.243] and [330.245]
respectively.
[330.271]
Acts of charity or necessity
If the necessity arises, a person may give directions or pay for the funeral expenses of the deceased
person1, and may appropriate a reasonable sum for that purpose out of the deceased's money. By doing
so he will not make himself liable as an executor de son tort2.
Any foreign administrator3 with a foreign grant not resealed in Malaysia, and who administers property in
Malaysia, may be constituted an executor de son tort, but not so where a foreign probate has been
resealed4.
1 Lim Eow Thoon v Lim Fang Tee (1958) 3 MC 164; Ong Ah Goh v Kuan Keh Lan [1968] 2 MLJ 57.
2 As to executors de son tort see [330.244], [330.269].
3 As to administrators see [330.245].
4 Chung Kok Yeang v PP [1941] MLJ 163, CA . As to resealing see [330.459] and following.
[330.272]
Receipt of property
A person who receives payment from the executor de son tort1 of a debt due from the deceased or who
takes over property of a deceased person from an executor de son tort does not make himself an
executor de son tort although, if he has taken the property with notice of a trust, it may fall into his hands
as trust property2.
2 See [330.273]; Kechik v Habeeb Mohamed [1963] MLJ 127, CA , where the widow of a deceased person granted
sub-tenancies of premises comprised in the deceased's estate before being granted letters of administration, she was held
to be administering the estate for the benefit of the estate and thus her subsequent appointment as administratrix related
back so as to validate the sub-tenancies.
Page 242
Executor de Son Tort/ (ii) Effects of Acts of Executor de Son Tort
(ii) Effects of Acts of Executor de Son Tort
[330.273]
Lawful acts bind the estate
An act of an executor de son tort1 is generally taken as lawful if such professed administration2 of the
estate by a person purporting to act as personal representative3 which a rightful executor4 would have
been bound to perform in due course of administration, binds the estate5, especially if such acts have
been done for the benefit of the estate6. When an executor de son tort acts in obedience to a statutory
duty which extends to him, the act will bind the estate7.
2 See [330.244] note 8.
3 See [330.242].
4 See [330.242] note 4.
5 Singapore Gems Co v The Personal Representatives for Akber Ali (decd) [1992] 2 SLR 254 where the executors de son
tort having carried on the business of the estate of the deceased, their acknowledgement of the debt therefore bound the
estate (see [330.242] note 3).
6 Chia Foon Sian v Lam Chew Fah [1955] MLJ 203 where an administrator was bound as executor de son tort by such
acts which were done by him for the benefit of the estate of the deceased.
7 Haji Osman bin Abu Bakar v Saiyed Noor bin Saiyed Mohamed [1952] MLJ 37, CA , where it was held that the death of
the transferor of the land did not avoid the contract and that his legal representative was trustee for the purchaser and
could be compelled to take all steps necessary to give effect to the contract executed by the deceased.
Page 243
Executor de Son Tort/ (iii) Liabilities and Rights of an Executor de Son Tort
(iii) Liabilities and Rights of an Executor de Son Tort
[330.274]
Liability to be sued
An executor de son tort1 is liable to be sued by the rightful representative, a creditor or a beneficiary2.
However he is not liable for more than has come to his hands, and he may, as against the rightful
representative, set up in mitigation damages for all payments made by him in due course of
administration3, but it would appear that he cannot avail himself of any right of recoupment if the rightful
representative is a creditor4 and there are insufficient assets left to pay his debt.
An executor5 can be adjudged a bankrupt in his personal capacity, of the trade debts of the testator
incurred after the testator's death, provided the executor is sued in his personal capacity6.
2 See Soo Bian Joo v Soo Boon Leong (1958) 3 MC 236.
3 See [330.244] note 8.
4 Fazil Rahman v AR S Nachiappa Chettiar [1963] MLJ 309.
5 See [330.243], [330.244].
6 See Re Chop Sin Guan Seng [1934] MLJ 1; Re Wong Tee Lian [1969] 2 MLJ 217. As to adjudication of bankruptcy see
BANKRUPTCY (2012 Reissue) [170.125] and following.
[330.275]
Liability of person fraudulently obtaining or retaining estate of deceased
If any person, to defraud creditors or without full valuable consideration, obtains, receives or holds any
movable or immovable property1 of a deceased person or effects the release of any debts or liability due
to the estate of the deceased, he will be charged as executor in his own wrong2 to the extent of the
property received or coming into his hands, or the debt or liability released, after deducting:
(1) any debt for valuable consideration and without fraud due to him from the deceased person
at the time of his death; and
(2) any payment made by him which might properly be made by a personal representative3.
2 As to executors de son tort see [330.244], [330.269]. For the meaning of 'executor' see [330.242] note 4.
3 Probate and Administration Act 1959 (Act 97) s 65. For the meaning of 'personal representative' see [330.242].
Page 244
[330.276]
Liability to estate of personal representative
Where a person as personal representative1 of a deceased person (including the executor in his own
wrong2) wastes or converts to his own use3 any part of the movable or immovable property4 of the
deceased, and dies, his personal representative will, to the extent of the available assets of the defaulter,
be liable and chargeable in respect of the waste or conversion, in the same manner as the defaulter
would have been if living5.
2 As to executors de son tort see [330.244], [330.269]. For the meaning of 'executor' see [330.242] note 4.
3 Re Cheah Seong Geok (decd) [1935] MLJ 10, where it was held that the executor had no right to keep the property for
his own benefit.

Page 245
Administration and Succession/(2) Executors and Administrators/(1) Office of Representative/ D. The
Administrator/ (i) Administrator's Acts before Grant
D. THE ADMINISTRATOR
(i) Administrator's Acts before Grant
[330.277]
Source of administrator's title
Any personal representative1 who is not an executor is an administrator2. An administrator is a person

who obtains his authority solely from the grant of letters of administration3 and to whom representation of
the deceased is committed by the court4.
Every person to whom administration of the estate5 of a deceased person is granted will, subject to the
limitations contained in the grant, have the same rights and liabilities and be accountable in the same
way as if he were the executor of the deceased6. Although the administrator's office resembles that of an
executor, since he has not been selected by the deceased, he is obliged to give a bond with sureties for
the due performance of his duties and with regard to immoveable property, he can only perform with the
sanction of the court7.
1 See [330.242].
2 An administrator is appointed by the court: see [330.245]. As to executors see [330.243], [330.244].
3 See the Singaporean case of Chia Foon Sian v Lam Chew Fah [1955] MLJ 203 where the court held that the legal
authority of an administrator is acquired from the grant of letters of administration and not from the date of extraction.
4 Upon the grant of administration (see [330.244] note 8) by the court, all the movable and immovable property (see
[330.242] note 7) of a deceased person vest with the administrator: Probate and Administration Act 1959 (Act 97) s 39(2).
For the meaning of 'administrator' and 'Court' see [330.242] note 5 and [330.256] note 3 respectively. See Re Yap Hong
Khai (decd), ex p Williams Jacks & Co (Malaya) Ltd [1965] 2 MLJ 233 where the Bankruptcy Rules 1969 (PU (A)
199/1969) r 231(1) requires the petition to be served on the person who has taken out letters of administration; Datin
Peggy Lilian Taylor v Leong Yuet Yeng [1985] 2 MLJ 456, where it was held that the grant itself gives the plaintiff the
necessary powers to administer the estate; Chor Phaik Har v Farlim Properties Sdn Bhd [1997] 3 MLJ 188, FC , where it
was held that a beneficiary under an intestacy has no interest or property in the personal estate of a deceased person until
the administration of the latter's estate is complete and distribution made according to the law of distribution of the intestate
estate. As to the law regulating distribution see [330.614] and following.
6 Probate and Administration Act 1959 s 31. For the meaning of 'executor' see [330.242] note 4.
7 See the Probate and Administration Act 1959 s 60(4). See also Soon Seng Company Sdn Bhd v Toko Palayakat Jamal
(M) Sdn Bhd [1999] 6 CLJ 397 where the court held that the administrator ought to have obtained a fresh consent pursuant
to the Probate and Administration Act 1959 s 60(4); Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non
with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90; Wayrex Sdn Bhd v Lee Ewe
Bee [2012] 1 MLJ 358, CA ; Tan Pui Sim v Tan Chong Ton @ Tan Boon Seng [2014] 10 MLJ 183; Md Zubir bin Hamid (as
beneficiaries of the estate of Hj Saud bin Hj Deris and Muhammad Salleh bin Hj Deris, deceased) v Zahari bin Salleh
[2017] 4 MLJ 351, CA .
[330.278]
Page 246
Vesting of authority
Notwithstanding that the grant may have been given earlier, the administrator1 is not vested with the
authority to transact the affairs2 of the deceased's estate until he has extracted the grant3. However,
once letters of administration have been granted the administrator may ratify acts for the benefit of the
estate done after the death of the deceased but before the grant4. However, an estate claim5 can be
instituted on the strength of the grant of the letters of administration itself6 even if the schedule of assets7
to the petition does not identify the chose in action8 as an item of asset, but a right of action, being part
of a deceased person's estate, must be included in the grant of letters of administration before it can be
enforced by an administrator9. The capacity to sue arises as soon as the petition for the grant is allowed
and order granted10, save that the dependants of a deceased can maintain a dependency claim and no
letters of administration are required11. However, an administrator cannot be sued in respect of a debt
due by a deceased person unless letters of administration have been granted under seal, that is
extracted, as it is the grant under seal and not the order of the court that confers status12.
1 See [330.245].
2 In Re Chop Sin Guan Seng [1934] MLJ 1, the widow was an administratrix de son tort. As to executors de son tort see
3 See Ruhani bt Mohiat v Abdul Karim b Mat Ali [1993] 2 AMR 1339 where the word 'extract' was interpreted to mean
taking or procuring a document, or a copy of a document but not 'investing' with any power; Lim Cheng Kwang v Sivamalai
d/o Sinnathambi [1994] 2 CLJ 59 where the court held that the principle of laches was not applicable to the plaintiff as
there was no time frame or deadline compelling the plaintiff to apply and extract an order for the grant of letters of
administration.
4 Sharikat Bakti v Amar Singh [1967] 2 MLJ 246, where the administrator ratified acts done after the death of the testator
and before the grant was obtained for the benefit of the estate, once letters of administration were granted; Khoo Kay Hock
v EJ Ketting [1978] 2 MLJ 57, FC , where the schedule of property to the grant of letters of administration did not in law
affect the title of the personal representative of a deceased person to institute legal proceedings.
5 Only when it becomes necessary for a person to claim a share in the estate of the intestate does the question of taking
out letters of administration arises: see Ooi Jim v Ai Eit [1977] 2 MLJ 105, FC .
6 Chia Foon Sian v Lam Chew Fah [1955] MLJ 203, where the plaintiff acquired the office of administrator on the date of
the grant; Ingall v Moran [1944] 1 KB 160, [1944] 1 All ER 97, CA (Eng) , where it was held that an administrator has no
cause of action vested in him before obtaining letters of administration.
7 In Chua Chee Chor v Chua Kim Yong [1960] MLJ 127, CA , it was held that when the court grants letters of
administration it does not go into questions of title as to the assets alleged to be the property of the deceased at the time of
his death, and that such a grant is not conclusive proof that the property in the schedule to the grant was owned by the
deceased at the time of his death; Datin Peggy Lilian Taylor v Leong Yuet Yeng [1985] 2 MLJ 456 where it was decided
that an estate claim can be instituted on the strength of the grant of letters of administration itself even if the schedule did
not identify the debt as an item of asset since it is merely evidence as to whether estate duty is payable; Kwa Hock Kee v
Kwa Kian Seng [1985] 2 MLJ 283 where it was held that the Probate and Administration Act 1959 (Act 97) does not
provide that a grant of representation is issued only in respect of those assets appearing in the schedule or that a grant is
only effective in authorising the representative to deal with only those assets and no other. See also Yong Siew Agiing
(Suing as Administratix of the Estate of the Late Hou Bok Chai (decd)) v The Owners and the Persons Interested in the
Vessel 'ML Saga 86' [2005] 2 MLJ 411, CA .
8 See Re Khoo Kim Hock [1974] 2 MLJ 29. See also Datin Peggy Lilian Taylor v Leong Yuet Yeng [1985] 2 MLJ 456,
where it was held that it is immaterial that the schedule did not identify the debt as an item of asset as it is merely evidence
as to whether estate duty is payable.
9 Ong Bee Yam v Osprey Sdn Bhd [1997] 5 CLJ 408. The inventory or schedule of property or list of assets annexed to
the grant, lists the assets which are vested in the administrator upon the issue of letters of administration for the purposes
of administration. This inventory or schedule of assets provides a description of the assets to be administered and is
important for the purpose of assessment of the true value of the estate and the estate duty payable or making provision for
security. The failure to include a certain asset in the list of assets annexed to the grant is not fatal but curable by
amendment. The amendment goes back to the date of the original issue of the grant of the letters of administration and as
such, the amended list must be read as though the amendment had been inserted from the beginning: Yong Siew Agiing
(Suing as Administratix of the Estate of the Late Hou Bok Chai (decd)) v The Owners and the Persons Interested in the
Vessel 'ML SAGA 86' [2005] 2 MLJ 411, CA .
10 Ang Hoi Yin v Sim Sie Hau [1969] 2 MLJ 3; Datin Peggy Lilian Taylor v Leong Yuet Yeng [1985] 2 MLJ 456 and Kwa
Hock Kee v Kwa Kian Seng [1985] 2 MLJ 283 enunciated the proposition that until the grant of letters of administration has
Page 247
been extracted, the administrators are not clothed with the capacity to sue, but in the later case of Ruhani bt Mohiat v
Abdul Karim b Mat Ali [1993] 2 AMR 1339, the court held that pursuant to the Probate and Administration Act 1959 ss 30,
31, the grant of letters of administration is effective from the date the petition is allowed and the order granted and that the
act of extraction of the letters of administration only evidences to the world that the persons named in the grant are the
administrators of the estate of the deceased. In Law Hock Key v Yap Meng Kan [2008] 3 CLJ 470, CA , where it was held
that since the plaintiffs were claiming their deceased mother's right in their grandfather's estate, they had to obtain the
letters of administration in respect of their mother's estate in order to entitle them to bring this action against the
defendants who were the plaintiffs' maternal uncles. They had to establish that they had legal title to sue the defendants.
They were the beneficiaries of their mother's estate but they were not the legal representatives of the estate as they had
not applied for the letters of administration in respect of their mother's estate. As such, they had no locus standi to bring
this action against the defendants.
11 See the Civil Law Act 1956 (Act 67) s 7. In Khairul Anwar bin Abd Aziz v Pakiam a/p Vitilingam (as the beneficiary and
the mother to Vanarajan a/l Arjunan, decd) [2010] 7 MLJ 372, Ho Mooi Ching JC held that in a motor vehicle accident
claim, by virtue of the circumstances set out in the Civil Law Act 1956 (Act 67) s 7(8), a dependency claim may be brought
by all or any of the persons, if more than one, for whose benefit the action would have been brought if it had been brought
by the executors. It was not incumbent on respondent to take out letters of administration or a grant of probate before
commencing this action.
12 Chia Teck Liang v Tan Soo Khiang [1936] MLJ 148, CA ; Foon Seong v Chan San Choon [1947] MLJ 85; P
Govindasamy Pillay & Sons Ltd v Lok Seng Chai [1961] MLJ 89. As to the exception see RC O 15 r 6A which enables a
person to bring an action against the estate of a deceased person where no grant has been made in order to prevent
delaying tactics by the family of the deceased against whom a cause of action survives. In the interim period between the
death of the intestate and the appointment of administrators, the court may appoint the Corporation (ie Amanah Raya
Berhad: see [330.247]) to accept service of any originating process or notices to be served on the estate and unless the
court with the consent of the Corporation orders that the appointment will be extended to the Corporation taking further
steps in the proceedings. See also Comptroller of Income Tax v Yan Tai Min [1965] 1 MLJ 255; Selvarajah v Official
Administrator [1978] 2 MLJ 108; Long Pines Enterprise Sdn Bhd v Beeran Kutty Yusof [1999] 1 CLJ 278 where the court
examined the Probate and Administration Act 1959 s 39.
Page 248
Administration and Succession/(2) Executors and Administrators/(1) Office of Representative/ D. The
Administrator/ (ii) The Doctrine of Relation Back
(ii) The Doctrine of Relation Back
[330.279]
Relation back of administrator's title
It has been recognised by the courts that upon a grant being made, the administrator's title1 may relate
back to the time of death, where this is for the benefit of the estate2. This doctrine has been consistently
applied to substantiate an administrator's acts in seeking to recover against a person who has dealt
wrongfully3 with the deceased's estate or to grant valid sub-tenancies4, but the doctrine cannot be
applied, however to disturb the interests of other persons validly acquired in the interval, or to give the
administrator title to something which has ceased to exist in the interval5.
2 See Mills v Anderson [1984] QB 704, [1984] 2 All ER 538. See also Ibrahim Sah v Zahara Bee (1936) 2 MC 130 (the
grant of letters of administration gives title to the person but until such letters of administration are extracted he does not
have the document of title; and if and when he gets the grant issued to him it relates back). The principle of relation back
has also been recognised in some instances by statute: see eg the National Land Code (Act No 56 of 1965) s 347(1)
which provides that the title or interest of any personal representative or representatives in respect of any land, or share or
interest in land forming part of that person's estate, relates back to the death of the deceased. See also Ellis v Ellis [1905]
1 Ch 613, 74 LJ Ch 296.
3 A person who intermeddles without a grant may be an executor de son tort, for there is no such term as an administrator
de son tort. As to executors de son tort see [330.244], [330.269].
4 Kechik v Habeeb Mohamed [1963] MLJ 127, CA , where the court held that the administratrix's appointment
subsequently related back to validate her action.
5 Mohamed Ibrahim v Lim Tuan Hong [1960] MLJ 180, where the subsequent grant of letters of administration could not
operate by virtue of the relation back to include in the estate the tenancy which had been extinguished. See also Fred
Long & Sons Ltd v Burgess [1950] 1 KB 115, [1949] 2 All ER 484, CA (Eng) ; Sadasivan v Tan Kok Cheng [1966] 2 MLJ
171.
[330.280]
Validation of dispositions
The doctrine of relation back1 is also applied to render valid dispositions of the deceased's property
made before representation was granted when it is shown that those dispositions are for the benefit of
the estate, or have been made in due course of administration2.
The disposition need not have been made by the person who ultimately obtains the grant3, provided it is
ratified by the administrator4 on obtaining the grant5.
1 See [330.279].
2 Alagappa Chettiar v Kader [1939] MLJ 304 where the personal representatives had the right to continue the tenancy;
Kechik v Habeeb Mohamed [1963] MLJ 127, CA , where the court held that the defendant's appointment as administratrix
related back so as to enable her to grant valid tenancies.
Page 249
3 Lim Cheng Kwang v Sivamalai d/o Sinnathambi [1994] 2 CLJ 59 where the transfer and registration of land was not in
compliance with the Probate and Administration Act 1959 (Act 97) ss 39(1), 60(1)-(4).
5 Balakrishnan a/l Ramasamy v Lum Lye Peng [1997] 5 MLJ 112 where it was held that the Probate and Administration
Act 1959 s 60 clearly enabled the co-administratrix of the deceased's estate to enter into a tenancy agreement in respect
of the half share of the deceased's estate to which she was entitled as she was competent to act in her own right in
respect of her half share and therefore, had the capacity to enter into a binding agreement in respect of the whole of the
premises.
[330.281]
Actions begun before grant
The doctrine of relation back1 of an administrator's title to the intestate's property to the date of the
intestate's death cannot be invoked so as to render competent an action which was incompetent when
the writ was issued. However, an action will lie against a person making claims on behalf of the
intestate's estate who has not yet obtained a grant of administration2. A creditor or person beneficially
interested in an estate, however, may begin an action by a writ and apply for the appointment of a
receiver pending grant3.
When an administrator4 is in possession of a valid grant of letters of administration5, then he has the
necessary capacity to issue the writ of summons or to institute such cause of action6 which survives the
deceased at the time of his death7, but not so in a dependency claim by the dependants of a deceased
person, where letters of administration are not required8, or where the administrator is in possession of a
foreign grant9.
1 See [330.279].
2 Sadasivan v Tan Kok Cheng [1966] 2 MLJ 171 where the doctrine of relating back allowed the administrator to sue in
trespass and obtain the appointment of a receiver to prevent wrong to the estate.
3 See the Probate and Administration Act 1959 (Act 97) s 45. See also [330.258].
4 See [330.245].
5 Yap Kee Par v Molly Yap [1996] 4 MLJ 219; Chia Teck Liang v Tan Soo Khiang [1936] MLJ 148, CA ; Foon Seong v
Chan San Choon [1947] MLJ 85; Comptroller of Income Tax v Yan Tai Min [1965] 1 MLJ 255; P Govindasamy Pillay &
Sons Ltd v Lok Seng Chai [1961] MLJ 89; Re Yap Hong Khai (decd), ex p Williams Jacks & Co (Malaya) Ltd [1965] 2 MLJ
233. It is the grant under seal and not the order of the court issuing the grant which clothes the personal representative
with his authority: see Datin Peggy Lilian Taylor v Leong Yuet Yeng [1985] 2 MLJ 456; United Asian Bank Bhd v Personal
Representative of Roshammah (decd) [1994] 3 MLJ 327; Long Pines Enterprise Sdn Bhd v Beeran Kutty Yusof [1999] 1
CLJ 278. See also RC O 15 r 15 (representation of deceased person interested in proceedings).
6 Meyappa Chetty v Supramaniam Chetty [1916] 1 AC 603, PC . As to writ of summons see [330.367].
7 On the death of any person all causes of action subsisting against or vested in him will survive against, or, as the case
may be, for the benefit of, his estate: Civil Law Act 1956 (Act 67) s 8(1). As to the exceptions see s 8(1) proviso.
8 See the Civil Law Act 1956 s 7. The term 'parent' under this provision does not include a stepfather or stepmother: see
Puteh bin Mahmood v Ng Twee [1971] 1 MLJ 206.
9 King Hock Ching v Ung Siew Ping [1974] 2 MLJ 16 where the court held that the Singapore grant by itself conferred no
title on the plaintiff to institute action as administrator of the estate of the deceased and the writ was therefore a nullity.
Page 250
Administration and Succession/(2) Executors and Administrators/(1) Office of Representative/ E. Personal
Representative's Remuneration
E. PERSONAL REPRESENTATIVE'S REMUNERATION
[330.282]
General principle
The general principle is that a personal representative1 must act without fee for his work if he is in a
fiduciary position2. He is however entitled to out-of-pocket expenses3 and reasonable remuneration if the
beneficiaries of the estate have benefited from the work done4. Personal representatives are entitled to
remuneration5 in cases where:
(1) the court6 authorises the remuneration7;

(2) the particular will confers such authority8 which is binding on beneficiaries who take only
what the will gives them;
(3) every beneficiary of a solvent estate has reached the age of majority9 or is a corporation and
they confer authority for the personal representatives to receive remuneration10.
Except where the remuneration of an administrator has been fixed by the court, the administrator's
remuneration will nevertheless be assessed and provided by the court11 when the court has completed
examination of the administrator's account12 and taxation of his costs13.
2 A personal representative has a duty to account for all his dealings: see Woon Mooi Hua v Tan Kay Swee [1971] 1 MLJ
169.
3 Re Shaik Ramzan bin Abdullah Basarawi (decd) [1951] MLJ 93 where the beneficiaries of the estate had benefited from
the work done by the trustee appointed by the Japanese court; this created an obligation to pay a reasonable remuneration
for the service rendered and they be indemnified against expenses incurred by them.
4 Pg Md Yaakub Pg Hashim v AK Mahrup Pg Hashim [1997] 5 CLJ 456 where the court held that the executor de son tort
was allowed a percentage of a property manager's fee for taking the initiative to develop the land of the estate,
notwithstanding he had not devoted all his time to the administration of the property.
5 Remuneration received by an executor and trustee of an estate under a will is subject to payment of income tax: see C D v
Comptroller of Income Tax [1967] 2 MLJ 166, CA . As to income tax generally see REVENUE (2013 Reissue) [480.014] and
following.
7 See the Probate and Administration Act 1959 (Act 97) s 43. See also the Trustee Act 1949 (Act 208) s 46. See Re Chew
Joo Chiat (decd) [1933] 2 MLJ 187 where remuneration or commission of an executor or administrator is to be calculated
based on whether the administrator has done his duty according to the law and not whether the administration was
successful; Yap Tai Chee v Yap Tai Cheong [1910] 2 FMSLR 35, CA , where there was no power to allow trustees any
remuneration when the will provided for none; Re Syed Ahmed Alsagoff (decd) [1960] MLJ 147 where additional
remuneration was not allowed to a director who appointed himself as a trustee.
8 Liew Hon Nyuk v Lee Nyean Choong [1963] MLJ 187, CA , where the court held that the executors had not engaged 'in
business of their own' in the sense intended by the testator and that they were therefore entitled to their remuneration under
the will; Subbiah Sundaravalli Achi v Karuppiah Chettiar [1968] 2 MLJ 120 where any moneys taken in excess of the
testamentary remuneration would have to be repaid by the executors and trustees to the estate. If the personal
representative is an attesting witness to the will such gift by the testator is inoperative: Re Kulsome Bee (decd) [1930] SSLR
64 where the plaintiffs who were devisees and legatees under the will alleged that they had not attested the will as attesting
witnesses in the manner prescribed by law but merely for the purpose of verifying the contents of the will. As they failed to
discharge the burden of disproving what appeared plainly in evidence and upon the face of the will that they signed as
Page 251
attesting witnesses, the gifts to them were null and void. As to gifts to witnesses see [330.019].
9 See [330.255] note 2.
10 Wanchee Incheh Thyboo v Golam Kader (1883) 1 Ky 611.
11 Hwa Soo Chin v Personal Representatives of the Estate of Lim Soo Ban (decd) [1994] 2 SLR 657 where it was held that
the Trustees Act (Cap 337) (Sing) s 46 provides that the court may allow any trustee, other than the Public Trustee, such
remuneration for his services as trustee as the court may think fit.
12 RC O 72 r 20(4); see Siow Hon v Siow Koon Chia [1927] 7 FMSLR 36 where it was held that the order from the court
releasing the administrator from his administration does not take effect until the administrator has filed and passed his
accounts; Ewe Keok Neoh v Ng Aun Thye [1934] MLJ 23, PC , where the beneficiary had mortgaged the whole of his
interest in the estate, any right of account which he otherwise might have had against the personal representatives of the
estate could only be enforced by the mortgagees and not by the beneficiary.
13 As to costs generally see CIVIL PROCEDURE (2014 Reissue) [190.12-001] and following.
[330.283]
Representative may make no profit
It is a well established rule of equity that a person with fiduciary duties may not derive any pecuniary
benefit from his office. Thus, no profit earned from the estate can be kept for the personal benefit1 of a
personal representative2 who must3 account to the estate for all profit derived from the trust property or
from his office4.
A personal representative is liable to account5 for the assets of the estate in his own business, at the
option of the beneficiaries, either from the profits actually made or from interest on the sum employed,
unless the will on its true construction authorises the representative to make such profits or permits the
executor to obtain benefits under the will6.
1 Low Quie Sew v Low Soong Wan Neo (1881) 2 SLJ 40, where commission from the sale of the testator's landed property
which was sold under the direction of the court, was disallowed.
3 See Phillips v Bignell (1811) 1 Phillim 239, 23 Digest (Repl) 319 (the personal representative has to produce an inventory
or account only upon lawful demand); Myddleton v Rushout (1797) 1 Phillim 244, 23 Digest (Repl) 319 (any interest in the
estate of a testator or an intestate is sufficient to support an application for an inventory); Jickling v Bircham (1843) 2 Notes
of Cases 463, 23 Digest (Repl) 320; Scurrah v Scurrah (1841) 2 Curt 919 at 921 (mere lapse of time is no bar to such right);
Burgess v Marriott (1843) 3 Curt 424 at 426; Ritchie v Rees and Rees (1822) 1 Add 144 at 158 (the court has a discretion to
refuse the application).
4 Tan Kim Neo v Tan Teck Bee [1955] MLJ 30, CA , where it was held that the additional businesses were extensions of the
original family business and thus the sole administrator was subject to the equitable doctrine that any person in a fiduciary
capacity is not allowed to make a profit out of property in regard to which the fiduciary relationship exists; Re Lee Wee Nam
(decd) [1982] 1 MLJ 109 where the court held that the executors were trustees of the estate and that since they had
intermeddled and asserted dominion over the assets of the estate they owed fiduciary duties to the beneficiaries.
5 See Woon Mooi Hua v Tan Kay Swee [1971] 1 MLJ 169; Shaik Pareetho v Ebramsah (1889) 4 Ky 491, CA . Even after a
period of 21 years, a personal representative was still required to render proper accounts of the deceased's estate: see
Freeman v Fairlie (1812) 3 Mer 29 at 43, 44.
6 Ong Cheng Neo v Yeap Cheah Neo (1872) 1 Ky 326, PC ; Re Lee Theam Neoh (decd) [1956] MLJ 22. See also
[330.288].
[330.284]
Page 252
Executor in professional practice
The rule of no profit to the representative1 for his time and trouble applies especially so in the case of a
solicitor-representative, in the absence of any special clause in the will authorising the
solicitor-representative to charge for professional services2. In the case where the solicitor has acted in
proceedings, whether of a contentious nature or not, on his own behalf or on behalf of his
co-representative, he will not be prevented from receiving the usual cost3, so far as he has not himself
added to the expense which would have been incurred if he had appeared only for them. Such
solicitor-representative is only entitled to out-of-pocket expenses but not to profit costs for work done out
of court, whether acting for himself or for the body of executors.
This rule applies to other professional men who are appointed executors and similar principles in relation
to charges for services4 apply to them and to businessmen who are appointed as executors.
1 See [330.283]. As to personal representatives see [330.242] and following.
2 For the meanings of 'costs' and 'taxed costs' see RC O 59 r 1. See also CIVIL PROCEDURE (2014 Reissue) [190.12-001].
3 See Practice Direction [1954] MLJ v.
4 Tan Soon Hoe v Yeo Cheng Choon (1960-63) SCR 211, where the administrator's claim for salary was not a claim for
services as administrator nor could it be said that the respondent was making a profit out of his position as administrator.
[330.285]
Costs allowed when acting for beneficiary
A solicitor-representative may act as solicitor for a beneficiary in an action relating to the estate1, because
that is not part of the business of the trust property so called, and if the beneficiary obtains his costs out of
the estate, the solicitor is not deprived of those costs2. However, he should not act for a party who
occupies an adverse position to the estate, and if he does so he will be disallowed his costs3.
1 As to remuneration of representatives see [330.282], [330.283]; as to direction in will for remuneration see [330.286].
2 Re Barber, Burgess v Vinicome (1886) 34 Ch D 77 at 81.
3 Re Corsellis, Lawton v Elwes (1887) 34 Ch D 675, CA (Eng) .
[330.286]
Direction in will for remuneration
A testator may by his will authorise his executor1 to be paid or be remunerated2 for professional work3, or
for work which an ordinary lay executor could have done in person without the assistance of a
professional man. For a solicitor to be entitled to professional charges there must be clear words in the
will; a direction that he should be paid all usual professional charges is not sufficient4.
An authority to a professional executor to make professional charges is a legacy, which will fail if the
executor has attested the will5 and it cannot receive effect where the estate is insolvent. However, where
a legacy is annexed to the office of executor, the executor is not entitled to charge the usual executor's
commission in addition to the legacy6.
Page 253
1 See [330.243], [330.244].
2 Ong Cheng Neo v Yeap Cheah Neo (1872) 1 Ky 326.
3 See [330.282], [330.285]. As to the power of personal representatives to employ solicitors see the Trustee Act 1949 (Act
208) s 28.
4 See [330.284].
5 See the Wills Act 1959 (Act 346) s 9 and [330.019].
6 Noor Mahomed Merican v Nacodah Merican (1885) 4 Ky 88.
[330.287]
Court's power to allow remuneration
The court1 may in its own discretion2 allow the executors or administrators3 a commission4 not exceeding
5 per cent5 on the value of the assets collected by them. In the allowance or disallowance of the
commission6 the court is guided by its approval or otherwise of the conduct7 and efforts8of the executors
or administrators in the administration of the estate9.
The true test for calculating remuneration is not whether the administrator is successful but whether the
administrator has done his duty according to law10.
The court may allow any trustee, other than the Public Trustee11 such remuneration for his services as
trustee as the court may think fit12.
2 In Re Loh Boon Nghee (decd) [1962] 1 MLJ 368, which followed Tan Soo Lock v Tan Jiak Choo [1932] SSLR 6, it was
held that it should be considered when assessing the executor's commission that the executor was able to manage his own
properties which were in the general area of those of the deceased's estate and that there were persons employed to look
after the estate properties.
3 As to executors see [330.243]; as to administrators see [330.245].
4 Ng Eng Kiat v Goh Lai Mui [1928] SSLR 71 where the court refused any commission as the executors had already paid
themselves commission at the maximum rate and without authorisation from the court. In Fong Ah Tai v Fong Yoon Heng
[2004] 7 MLJ 128, the executors had claimed 5% administration fees amounting to RM28,040.12. The evidence clearly
showed that there was no justification for the claim. There was insufficient ground to justify the defendants' claim to the 5%
administration fees. The defendants sought to base their claim on the basis of the Probate and Administration Act 1959 (Act
97) s 43. The court referring to the case of Rachel Mei Ling Ong v Dato' Bruno Henry Almeida [1998] 3 CLJ 71, [1998] 1
AMR 600, held that it is trite that the power of awarding commission to the executor lies solely at the discretion of the court
after taking into account the conduct of the executor in administering the estate. The executor cannot on his own simply
charge to the account of the estate in claiming for the commission allowed under the Act. The defendants must make an
application to the court under the said provision and show to the court their conduct in administering the estate. On the facts
of Fong Ah Tai's case, the court held that from the evidence adduced, the court did not find that the defendants had done
much in the administration of the estate. On the contrary, it was found that there had been quite a delay on the part of the
defendants in discharging their duties as executors of the estate. Similarly, the failure of the defendants to satisfactorily
explain about the discrepancy in the price of the properties sold bespoke of their conduct in administering the estate. The
court also took into consideration the roles played by the legal adviser and the broker who had been duly paid for their
services. Therefore, the court held that the executor was not entitled to the sum of RM28,040.12 as commission fees.
5 See Re Wan Ahmad Nasir bin Ngah Ibrahim (decd) [1935] MLJ 160, where interest was not chargeable, as there was no
evidence of wilful default and it could not be shown that the amount overcharged by the deceased executor was actually
received by him; Rachael Mei Ling Ong v Dato' Bruno Henry Almeida [1998] 3 CLJ 71, [1998] 1 AMR 600 where it was held
the fees charged by the executor for administering the estate were exorbitant and the executor was directed by the court to
apply under the Probate and Administration Act 1959 s 43, with supporting evidence of his conduct in administering the
estate, and it is for the court to assess and make an order allowing him a commission of not more than 5% of the total value
of the estate.
6 Seah Peng Koon (the trustees of the estate of Seah Liang Seah (decd)) v Seah Peng Song [1993] 2 SLR 353 where the
Page 254
Court of Appeal of Singapore held that the trustees could deduct the 5% commission as and when the compensation
moneys were received by them and not upon the expiration of the limited period.
7 In considering what, if any, rate of commission is to be allowed, it is proper for the court to consider the amount paid by the
executors in obtaining professional assistance: Ng Eng Kiat v Goh Lai Mui [1928] SSLR 71.
8 Hwa Soo Chin v Personal Representatives of the Estate of Lim Soo Ban (decd) [1994] 2 SLR 657 where the plaintiff was
held to be a constructive trustee of the property; as she had established the creche on her own initiative, and had not only
managed the creche without salary but had paid out the initial sum for renovation and whenever money was needed, she did
not deliberately put herself into a position where her interests conflicted with her duty as a person in a fiduciary position and
that the beneficiaries did not suffer, she should be allowed to keep the rental collected.
9 Probate and Administration Act 1959 s 43(1). See Tan Soo Lock v Tan Jiak Choo [1932] SSLR 6 where the commission
would be less where heavy costs have been incurred in obtaining professional assistance; Re Chew Joo Chiat (decd) [1933]
2 MLJ 187 where the court held that the true test for calculating remuneration is not whether the administration was
successful but whether the administrator had done his duty according to law.
10 Re Chew Joo Chiat (decd) [1933] 2 MLJ 187.
11 The office of the Public Trustee has been abolished and his function taken over by the Amanah Raya Berhad by virtue of
the Public Trust Corporation Act 1995 (Act 532). As to the functions and powers of the Amanah Raya Berhad see [330.247].
12 Trustee Act 1949 (Act 208) s 46.
[330.288]
Employment of assets in representative's own business
A representative1 who employs assets of the estate in his own business is liable to account2, at the option
of the beneficiaries, either for the profits actually made or for interest on the sum employed, unless the will
on its true construction authorises3 the representative to make such profits.
2 Ng Ah Kiang v Foo Choo Choon [1908] 1 FMSLR 36, CA .
3 Choy Miew Hem v Choy Weng Tung [1932] SSLR 126 where the administrators, who allowed a house belonging to the
estate and containing the ancestral tablets to be used as a family house without authorisation from the will or agreement
from the beneficiaries, were held to have been guilty of wilful neglect or default; Hee Yong Wah v Hee Keng Thiam (1956) 3
MC 82 where it was held that the purchase of the business in which the deceased had no financial interest at the time of his
death, was a breach of trust.
Page 255
Administration and Succession/(2) Executors and Administrators/(1) Office of Representative/ F. The Chain
of Representation/ (i) Devolution on Death
F. THE CHAIN OF REPRESENTATION
(i) Devolution on Death
[330.289]
Devolution of office
An executorship1 cannot be assigned at common law because it is an office of personal trust. The office
of a personal representative2 only devolves by operation of law, upon the death of one of several
representatives, with its incidents, duties and powers and all the property of the estate vested in the
representatives by virtue of such office, upon the survivor or survivors.
The chain of representation is not broken so long3 as the last executor in the chain is the executor (who
has proved the will) of every preceding executor4, but not in the case of an executor who does not prove
the will of his testator, or an executor who on his death leaves surviving him some other executor of his
testator who afterwards proves the will of that testator5.
The rights of an executor who has never proved the will, will upon his death cease and the
representation to the testator and the administration of his estate will devolve and be committed in like
manner as if that executor had never been appointed executor6.
2 See [330.242].
3 As to the break in the chain of representation see [330.291].
4 Probate and Administration Act 1959 (Act 97) s 12(2). See Syed Ali Redha Alsagoff (administrator of the estate of
Mohamed bin Ali (decd)) v Syed Salim Alhadad [1996] 3 SLR 410.
5 Probate and Administration Act 1959 s 12(1) proviso. See Lee Yoke San v Tsong Sai Sai Cecilia [1993] 1 SLR 602; Re
Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will annexed, of the Estate of K AL RM
Karuppan Chettiar, decd) [1998] 2 MLJ 90.
6 Probate and Administration Act 1959 s 7. In such situation letters of administration with the will annexed would have to
be taken out by any other person who qualifies to become the administrator: see s 16 and Lee Yoke San v Tsong Sai Sai
Cecilia [1993] 1 SLR 602.
[330.290]
Reservation of power to prove
Where a number of executors1 are appointed by the will but they do not all prove, power to prove may be
reserved to those who do not then prove2. If the last proving executor dies, the office devolves3 upon the
executor of the proving executor, but is divested if and when the non-proving executor later proves the
will of the original testator. The non-proving executor may, of course, be cited to take probate4, and if he
does not appear his rights will cease.
Page 256
2 See the Probate and Administration Act 1959 (Act 97) s 6(1).
3 As to devolution of office on death see [330.289]; as to devolution otherwise than on death see [330.293], [330.294].
4 See the Probate and Administration Act 1959 s 7. As to citations see [330.316] and following.
[330.291]
Break in chain of representation
Before a grant of administration (with will annexed) de bonis non1 (of goods not administered) can be
made, it must be established that there is no chain of executorship and that all executors2 named in the
will of the deceased have been cleared off (including any to whom power was reserved3) by reciting their
death or renunciation4. The chain of representation is broken by an intestacy, the failure to appoint an
executor or the failure of the executor to obtain probate of a will5. However, it is not broken by a
temporary grant of administration6 if probate is subsequently granted7, notwithstanding the rule that each
estate must be dealt with separately8.
When the administrator9 of an estate dies without completing the administration, an administrator de
bonis non must be appointed to carry on the administration of the original estate; the administration of
the original estate does not automatically pass to the second administrator10.
1 Where the sole or surviving administrator dies without completing the administration, a grant of administration de bonis
non is made for 'goods left unadministered': see Re Estate of Syed Abdullah bin Abdulrahman bin Sahil (decd) [1939] MLJ
179; Goh Cheng Teik v Syarikat Goh Guan Ho [1997] 4 MLJ 403. As to grants de bonis non see [330.435].
3 As to reservation of power to prove see [330.290].
4 Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will annexed, of the Estate of K AL RM
Karuppan Chettiar, decd) [1998] 2 MLJ 90. When filing the petition, the manner in which the chain of representation is
broken must be shown in the oath, ie is to state eg that the sole executor or the survivor of the proving executor died
intestate or he made a will without appointing an executor as the case may be. As to renunciation of the office of executor
5 Probate and Administration Act 1959 (Act 97) s 12(3). As to failure of executors see s 16 and [330.431]. See also Barber
v Walker (1867) 15 WR 728 (chain of transmission is broken where there is a grant of administration); Re Bridger (1878) 4
PD 77, 39 LT 123 (including a grant of administration with the will annexed).
6 The Probate and Administration Act 1959 s 34 provides for the continuance of legal proceedings after revocation of
temporary administration. See Debaroti Das Gupta v Deb Brata Das Gupta [2015] 7 MLJ 605.
8 In Re Zainab Binte Mat Diah (decd) [1951] MLJ 145, CA , where it was held that it was wholly improper and that it must
never be done to obtain a grant for two estates in the proceedings on a single petition.
10 Syed Ali Redha Alsagoff (administrator of the estate of Mohamed bin Ali (decd)) v Syed Salim Alhadad [1996] 3 SLR
410.
[330.292]
Powers and liabilities

Page 257
Every person in the chain of representation1 to a testator has the same rights in respect of the testator's
estate as the original executor would have had if living2; and is, to the extent to which the testator's
estate has come into his hands, answerable as if he were an original executor3.
The interest vested in the original executor by probate of the will of the testator is continued and kept
alive by probate of the will of the executor, without the need for a new probate of the original will4.
1 As to break in the chain of representation see [330.291].
2 Probate and Administration Act 1959 (Act 97) s 12(4)(a).
3 Probate and Administration Act 1959 s 12(4)(b). See Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis
Non with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90. For the meaning of
'estate' and 'executor' see [330.242] notes 3 and 4 respectively.
4 Syed Ali Redha Alsagoff (administrator of the estate of Mohamed bin Ali (decd)) v Syed Salim Alhadad [1996] 3 SLR
410.
Page 258
Administration and Succession/(2) Executors and Administrators/(1) Office of Representative/ F. The Chain
of Representation/ (ii) Devolution otherwise than on Death
(ii) Devolution otherwise than on Death
[330.293]
Office of personal representative not assignable
At common law, neither the office of executor1 nor that of an administrator2 is assignable, the reason
being that it is an office of personal trust. However, in the event a personal representative3 to whom
letters of administration may be granted, is absent from Malaysia, letters of administration may be
granted to an authorised attorney4 of the absent person limited until he obtains a grant himself5.
4 In Re Sethuramaswamy Chettiar (decd), RM Thiruppathi Chettiar v Letchumanan Chettiar [1950] MLJ 300, the powers of
an executor came to an end when the executor (who was the donor of the power) died and, therefore had no right to the
issue of the letters of administration; see also Scan Electronics (S) Pte Ltd v Syed Ali Redha Alsagoff [1997] 3 SLR 13
where it was held a grant of letters of administration to an attorney is in effect a limited grant and hence there was no
question arising as respect the deceased attorney being able to transmit the residuary estate of the deceased to his
personal representative, whether by way of a 'trust', device or otherwise.
5 See the Probate and Administration Act 1959 (Act 97) s 29(a), (b), (c); Re Ramanathan s/o AR A Nachiappan
(Administrator De Bonis Non with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90.
Where the absent person is an executor, notice must be given to the other executors of the estate unless such notice is
dispensed with by the Registrar: see RC O 71 r 26 proviso.
[330.294]
Absent persons
A trustee intending to remain out of Malaysia for a period exceeding 14 days may, notwithstanding any
rule of law or equity to the contrary1, by power of attorney2, delegate3 to any person (including a trust
corporation) the execution or exercise during his absence from Malaysia of all or any trusts, powers and
discretions vested in him as such trustee, either alone or jointly with any other person or persons4. The
power of attorney must be verified by attestation in the manner required by the Powers of Attorney
Ordinance 19495, and a true copy or office copy of it must be deposited in a registry of the High Court
with a statutory declaration by the donor that he intends to remain out of Malaysia for a period exceeding
14 days from the date of the declaration, or from a date mentioned in the declaration6. The power of
attorney will not come into operation unless and until the donor is out of Malaysia and will be revoked by
his return or entry into Malaysia7.
No power of attorney granted for such purpose will be operative for a longer period than three years after
the date of execution8.
1 Wong Weng Hong v Tsoi Lau Ying [1941] MLJ 141, where failure to register the power of attorney given by the
Page 259
administratrix from Hong Kong in the manner as prescribed by the Trustee Enactment (Cap 61) s 27 (now repealed by the
Trustees Act 1949 (Act 208) s 69, Schedule) rendered the said instrument legally ineffective.
2 As to documents required to accompany instruments presented for registration or executed under a power of attorney
see the National Land Code (Act No 56 of 1965) s 309.
3 Woon Mooi Hua v Tan Kay Swee [1971] 1 MLJ 169, where the delegatus non potest delegare rule did not apply as both
the plaintiffs under the will and by the grant of probate had been constituted as executrices of the estate.
4 Trustee Act 1949 s 30(1). However a person being the only other co-trustee and not being a trust corporation will not be
appointed to be an attorney under this provision: s 30(1) proviso.
5 Now the Powers of Attorney Act 1949 (Act 424).
6 Trustee Act 1949 s 30(4).

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Administration and Succession/(2) Executors and Administrators/(1) Office of Representative/ G. The Need
for and Effect of a Grant
G. THE NEED FOR AND EFFECT OF A GRANT
[330.295]
Need for grant
There is a need for a grant of probate or letters of administration in Malaysia to enable the personal
representatives1 to be vested with title2 to the deceased's property and thereafter to administer, collect
and protect the same for the benefit of the persons interested in the estate3, whether as creditors4,
legatees or next-of-kin5. In particular, a grant is essential if the estate comprises immovable property and
securities. A foreign personal representative cannot sue in Malaysia in his capacity as such unless he has
resealed the foreign grant6.
While an executor7 who does not obtain a grant in the Malaysia may validly appoint a trustee for the
assets of the estate under the Trustee Act 19498, that trustee can only prove his title by reference to a
proper grant of representation.
No grant is necessary insofar as the deceased has disposed of property by donatio mortis causa9,
because such a gift requires no act by the representative to vest it in the donee.
The civil remedy for failure to take out a grant is by citation10. If an executor has acted, he can be
compelled to take probate11.
2 Yap Kee Par v Molly Yap [1996] 4 MLJ 219; Chia Teck Liang v Tan Soo Khiang [1936] MLJ 148, CA ; Foon Seong v Chan
San Choon [1947] MLJ 85; Comptroller of Income Tax v Yan Tai Min [1965] 1 MLJ 255; P Govindasamy Pillay & Sons Ltd v
Lok Seng Chai [1961] MLJ 89; Re Yap Hong Khai (decd), ex p Williams Jacks & Co (Malaya) Ltd [1965] 2 MLJ 233. See
also RC O 15 r 15 (representation of deceased person interested in proceedings).
3 Abdulrahim v Drahman (1867) 1 Ky 171.
4 On the failure of executors letters of administration with will annexed may be granted to a creditor of the deceased: see the
Probate and Administration Act 1959 (Act 97) s 16 proviso (v). See Re TAS Sanmugam Pillay (decd) [1951] MLJ 81 where it
was held that an unregistered purchaser of land, whose title has not been registered before the death of the deceased
vendor, was a creditor of the deceased and was competent to petition for letters of administration where the next-of-kin had
declined administration and consented to the grant being made to the said purchaser.
5 The person who petitioned for the grant must name the next-of-kin in the application and notice of it should be served on
him: see Re Vinaitheerathan Chettiar [1947] MLJ 165.
6 Issar Singh v Samund Singh [1941] 1 MLJ 28 where the administrators who obtained a grant of letters of administration in
the Colony of Singapore could not sue in the Federated Malay States before the grant was resealed.
8 Ie the Trustee Act 1949 (Act 208).
9 Such gift resembles a gift inter vivos (between living persons) in that it takes effect when delivery occurs. Hence freehold
and leasehold land cannot be passed by means of a donatio mortis causa: see the Law Reform (Marriage and Divorce) Act
1976 (Act 164) s 6(1) (amended by the Law Reform (Marriage and Divorce) Amendment Act 1980 (Act A498)).
10 As to citation and proceedings see RC O 71 r 41 and O 72 r 5. See further [330.316] and following.
11 As to citation to accept or refuse or to take a grant see RC O 71 r 42.

Page 261
[330.296]
Effect of grant
The due execution and validity1 of a will is confirmed as conducive with a grant of probate or letters of
administration with will annexed2 and such validity remains until revoked. Letters of administration are also
conclusive of the deceased's intestacy. Hence the grant is seen as the sole and conclusive proof of the
personal representative's title to the estate of the deceased3 and no person can bring any action or
otherwise act as executor4 of the deceased person in respect of the estate comprised in or affected by the
grant until the grant has been recalled or revoked5.
1 In Amanullah bin Haji Ali Hasan v Hajjah Jamilah binti Sheik Madar [1975] 1 MLJ 30, where two wills made by a Muslim
testator were in issue, the court held that the will made while the testator was in a coma during an illness and disposing of
more than one-third of the estate was invalid on grounds of testamentary incapacity; the other will was held to be valid and
admitted to probate as it was made during a lucid interval and did not contravene Muslim law. Where a question arises as to
whether a specific property forms part of the assets of an estate of a deceased person who is a Muslim in a petition for a
letter of administration in the civil High Court see Latifah bte Mat Zin v Rosmawati bte Sharibun [2007] 5 MLJ 101, FC . See
also RM P RM P V Palaniyappan v NPL ST MV Ramanathan Chettiar [1977] 2 MLJ 34 where Indian law governed the will
executed in India and the testator was domiciled in India. As to the requisites for formal validity see [330.028] and following.
2 In Tan Chye Hoon v Lim Seow Chong (1885) 4 Ky 8, the court held that an executor of an administrator with the will
annexed of a deceased does not represent the estate of such deceased, notwithstanding that such administrator in his will
purports to delegate his power as administrator to his executor.
3 See Chay Chong Hwa v Seah Mary [1984] 2 MLJ 251, CA (Sing) which enunciated the principle that the grant of letters of
administration and the transmission of the shares to the administrator must be completed before the completion of the sale
of the deceased's estate by the administrator.
5 As to the revocation of grants see [330.300] and following.
[330.297]
Grant not conclusive as to collateral matters
The grant is the sole and conclusive proof of the personal representative's title1, but not of the identity of
the person who has obtained it or the validity of the will2 of the deceased. The grant can be challenged
with a probate action for the revocation of such a grant3 or for a decree pronouncing for or against the
validity of an alleged will, not being an action which is non-contentious4.
1 As to the effect of grants see [330.296]. As to personal representatives see [330.242] and following.
2 As to the requisites for formal validity see [330.028] and following.
3 As to the revocation of grants see [330.300] and following. As to what is a probate action see RC O 72 r 1(2) and
[330.364].
4 As to contentious probate proceedings see RC O 72.
[330.298]
Forgery and fraud
Even after a grant of probate, the court has full jurisdiction to decide that the will is a forgery1. Where
Page 262
probate has been obtained by a fraud2 practised upon the next-of-kin, the court has jurisdiction to declare
the wrongdoer a trustee in respect of the probate, but it cannot, on the ground of fraud practised upon the
testator, set aside a will which has been admitted to probate, unless the opposer to the will proves to the
court that the testator was under undue influence3 or was not of sound mind4 at the time of the execution
of the will5.
1 R Mahendran v R Arumuganathan [1999] 2 SLR 579, CA (Sing) , where it was held that the relevant issue was not
whether the deceased's signature was an assisted signature or a traced forgery, but whether the evidence of one of the
attesting witnesses that the signature was a traced forgery was of a degree of certainty sufficient to rebut the defendant's
evidence that the deceased had signed her name on the will with his assistance.
2 See [330.393].
3 Subramaniam v Rajaratnam [1957] MLJ 11, CA . See also [330.012] and [330.392].
4 Morris v Norie Lim (1928-41) SCR 24. See also [330.010] and [330.384].
5 Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457 where undue influence on the later will of the testator was proved
and the court did not admit it to probate.
[330.299]
Proving personal representatives
All executors1 or administrators2 of the estate or trustees of the trust3, as the case may be, to an
administration or such action relating to the determination of any question or relief in such administration4,
must be parties to the action, and where the action is brought by executors, administrators or trustees, any
of them who does not consent to being joined as a plaintiff must be made a defendant5.
3 See [330.246].
4 As to the determination of questions and relief in administration actions see RC O 80 r 2.
5 RC O 80 r 3(1).
Page 263
Administration and Succession/(2) Executors and Administrators/(1) Office of Representative/ H. Revocation
of Grants/ (i) When and How a Grant may be Revoked
H. REVOCATION OF GRANTS
(i) When and How a Grant may be Revoked
[330.300]
Jurisdiction to revoke grants
Jurisdiction to revoke a grant lies with the High Court (Civil Division) if the matter is contentious1. In a
non-contentious matter, if the Registrar of the High Court is satisfied that a grant should be amended or
revoked, he may so order2. Except in special circumstances, no grant may be so amended or revoked
except on the application or with the consent of the person to whom it was made3.
1 Every contested matter must be referred to a judge who may dispose of the matter in dispute in a summary manner or
direct that the provisions governing contentious probate proceedings (ie RC O 72) will apply: O 71 r 38; and see Leong
Chee Kong v Tan Leng Kee [1999] 4 MLJ 537; Chenna Gounder a/l Kandasamy v Angamah a/p Sunappan [2017] 10 MLJ
387. As to the continuance of legal proceedings after revocation of temporary administration see the Probate and
Administration Act 1959 (Act 97) s 32. See also Leong Chee Keong v Tan Leng Kee [2001] 1 MLJ 77, where the court held
that the provision under the repealed RHC O 71 r 38 (now RC O 71 r 38) is mandatory and must be complied with and that
a caveator also can not apply the repealed RHC O 2 r 1 (now RC O 2 r 1) on the ground that he did not admit
non-compliance of the order and also on the ground that failure to comply with a mandatory order was not an irregularity
that could be cured.
2 RC O 71 r 36(1). The Registrar must notify the Registrar of the Principal Registry of any amendment or revocation of a
grant: O 71 r 36(2). 'Principal Registry' means the Principal Registry in Kuala Lumpur or the Principal Registry in Kuching,
as the case may be; and 'Registrar of the Principal Registry' means the Registrar of the High Court and does not include
any other Registrar: O 71 r 2.
3 RC O 71 r 36(1) proviso. See Re Tang Pui Sim (decd) [1967] 2 MLJ 96, FC (Sing) . However, in Guindarajoo a/l
Vegadason v Satgunasingam a/l Balasingam [2010] 4 MLJ 842, it was held that any person having any interest, however
slight, is entitled to make such an application.
[330.301]
Revocation for sufficient cause
Any probate1 or letters of administration2 may be revoked or amended3 for any sufficient cause4.
Whether or not there is sufficient cause entails an objective test5. The power to revoke a grant of probate
or letters of administration is vested in the High Court6 and such power may be exercised for any
sufficient cause which is the due and proper administration of the estate and the interests of the
beneficiaries7 which are not to be jeopardised8.
However, the court will not revoke a grant of letters of administration still in full force9, or letters of
administration durate absentia to a person under a power of attorney from a next-of-kin10, or if the
procedure is followed11, or letters of administration de bonis non in favour of the plaintiff on the death of
one of the grantors of the power of attorney12.

Page 264
3 See RC O 71 r 36 and [330.300].
4 Probate and Administration Act 1959 (Act 97) s 34. Section 34 allows the plaintiff to apply to revoke or amend the grant
of probate or letters of administration 'for any sufficient cause'. Where a person alleges that he owns a particular property
which has been included in the administration and is able to prove it, this will constitute a sufficient cause: see Guindarajoo
a/l Vegadason v Satgunasingam a/l Balasingam [2010] 4 MLJ 842. See Re Khoo Boo Gong (decd), Khoo Teng Seong v
Teoh Chooi Ghim [1981] 2 MLJ 68 at 69, FC, per Chang Min Tat FJ expressing the view that the test of what is sufficient
cause which is strictly an objective test, is the due and proper administration of the estate and the interests of the
beneficiaries; Ligar Fernandez v Eric Claude Cooke [2002] 5 MLJ 177, where the court held that all that is needed to
invoke the court's jurisdiction under the Probate and Administration Act 1959 s 34 is for the plaintiff to adduce sufficient
evidence to raise a strong suspicion of the defendant's inaction, want of diligence and dishonesty or a conflict of interest
situation or inability to act, it being immaterial whether the allegations are actually believed or not, so long as they can be
objectively determined that they raise a reasonable suspicion; Jigarlal Kantilal Doshi v Damayanti Kantilal Doshi [1998] 1
SLR 211, [1995] 3 AMR 2590 where it was held that the power to revoke a grant of probate or letters of administration may
be exercised for any sufficient cause by invoking the Probate and Administration Act 1959 s 34 and appointing the Official
Administrator to administer the estate in the best interest of the estate and the beneficiaries; Re Ramanathan s/o AR A
Nachiappan (Administrator De Bonis Non with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998]
2 MLJ 90 where the court held that the grant ought to have been letters of administration with the will annexed and not by
a grant de bonis non, and hence the grant must first be amended in accordance with the repealed RHC O 71 r 36 (now RC
O 71 r 36) in order to clothe the applicant attorney with the requisite authority over the estate of the testator. In Majlis
Agama Islam Wilayah Persekutuan lwn Lim Ee Seng [2000] 2 MLJ 572, the deceased had embraced Islam and was
registered as a Muslim on 23 January 1973. He died on 28 July 1988. Letters of administration for the deceased's estate
were issued on 27 August 1992 to the defendants (wife and daughter). The plaintiff had moved the court to revoke the
letters of administration and the estate be given to the plaintiff. The defendants counterclaimed for a declaration that they
were entitled to be the administrators and representatives of the deceased's estate. The issue to be determined was
whether the defendants had a beneficial interest in the deceased's estate. The High Court allowing the plaintiff's
application held that as the deceased had embraced Islam and the defendants were not of the Muslim faith, the principle in
In the matter of the estate and effects of Timah bte Abdullah, decd; The Official Administrator FMS v Magari Mohihiko
Tose Udah binti Akar State of Pahang [1941] MLJ 51 that a non-Muslim was forbidden from inheriting the estate of a
Muslim applied to this case. The beneficial interest of the defendants in the estate of the deceased had never existed and
they had no right to inherit the estate of the deceased. Taking into account the Probate and Administration Act 1959 s 34,
the letters of administration issued to both defendants were revoked by the court. Where a question arises as to whether a
specific property forms part of the assets of an estate of a deceased person who is a Muslim in a petition for a letter of
administration in the civil High Court see Latifah bte Mat Zin v Rosmawati bte Sharibun [2007] 5 MLJ 101, FC . Whether
there was a gift inter vivos or not, that question will be determined in accordance with the Islamic Law of gift inter vivos or
'hibah'. The civil court must give effect to it in the grant of a letter of administration, and subsequently, in distributing the
estate.
5 See Guindarajoo a/l Vegadason v Satgunasingam a/l Balasingam [2010] 4 MLJ 842 where the court found a sufficient
cause established to revoke the letter of administration.
6 See the Probate and Administration Act 1959 s 40; Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457. In Chin
Teck Kwee @ Chin Teck Kwi v Lai Yoke Ngan [1993] MLJU 123, on 29 April 1992, the plaintiff obtained an ex parte
injunction prohibiting the defendants from acting as the administrators of one Chin's estate, and that a public trustee be
appointed instead. The defendants applied to set aside the injunction on the grounds, inter alia, that the plaintiff had failed
to disclose certain material facts and that the order to remove them from their appointment was obtained without any prior
notice to them as required under the Probate and Administration Act 1959 s 5. The High Court setting aside the injunction,
held, inter alia, that the injunction was wrongful because it included an order to remove the administrators; any order to
remove the administrators had to be made consequent to an application to revoke the grant of probate to them. Such an
application must be supported by sufficient grounds, and this had not been done in the present case.
7 See Re Estate of Syed Abdullah bin Abdulrahman bin Sahil (decd) [1939] MLJ 179 where in the absence of any
reference to survivorship among the grantors, the court held that the letters of administration de bonis non were not
revoked by the death of one of the grantors of the power of attorney; Lee Pak Yin v Liew Siew Yin [1940] MLJ 80, CA ,
where an executor or trustee is willing to act, a strong case must be made out to justify the dispossession of his office and
that the court will not dispossess an executor or trustee on slight grounds; Palaniappa Chettiar v S Solai [1961] MLJ 283
where an interest in property of one of the beneficiaries of the estate may constitute 'sufficient cause'; Fazil Rahman v AR
S Nachiappa Chettiar [1963] MLJ 309 where it was held that in the absence of allegation that the estate was not properly
administered and the estate appeared to be insolvent, there was no sufficient cause to revoke; RM P RM P V
Palaniyappan v NPL ST MV Ramanathan Chettiar [1977] 2 MLJ 34, where the court found no sufficient cause; Re Khoo
Boo Gong (decd), Khoo Teng Seong v Teoh Chooi Ghim [1981] 2 MLJ 68, FC , where the Federal Court held that absence
from jurisdiction of an executor who is always available and who has done what needed to be done, albeit with some
lapses, through capable and suitable solicitors, cannot amount to a cause, much less, a sufficient cause for revoking the
grant to him; Tan Khay Seng v Tan Kay Choon [1990] 1 MLJ 51 where it was held that the plaintiff failed to show that he
had sufficient cause to have the letters of administration revoked as there was no evidence of undue and improper
administration of the estate in total disregard of the interests of the beneficiaries; Jigarlal Kantilal Doshi v Damayanti
Kantilal Doshi [1998] 1 SLR 211, [1995] 3 AMR 2590 where a strong case was made out for the court to exercise its power
under the Probate and Administration Act 1959 s 34; Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3
Page 265
MLJ 61, FC , where the appeal for the revocation of the grant of probate was allowed as there was sufficient cause of
proof that the will was a forgery; Ligar Fernandez v Eric Claude Cooke [2002] 5 MLJ 177, where the court held that it is
empowered to remove an executor or a trustee under the will where there occurs a failure to act grounded either on
unfitness or incapacity and the primary consideration, on an objective examination of the facts, is to determine that the
welfare and interests of the beneficiaries and the assets of the estate be safeguarded. The grounds for removal should
remain open according to the particular circumstances of the case.
8 Re Lim Lean Hin [1992] 1 CLJ 707 where the application of a co-executor to revoke his appointment as executor was
allowed due to his medical condition.
9 Re Estate of Murugappa Chettiar Etc, decd [1940] MLJ 178.
10 Mahomed Mydin v Pana Sittee Mahomed (1886) 4 Ky 191, (1886) 1 SLJ 143.
11 Re Tay Tuan (decd) [1962] MLJ 285 where the previous procedure by way of motion in the administration proceedings
was held not correct.
12 Re Estate of Syed Abdullah bin Abdulrahman bin Sahil (decd) [1939] MLJ 179, [1939] SSLR 152. As to grants de bonis
non see [330.435].
[330.302]
No revocation if grant properly made
Where the administration is granted to the wrong person1, or where a grant is made without citing parties
who ought to have been cited2, revocation of the grant should be made. However, where a grant is
properly made, no revocation of the grant would be allowed at the instance of persons who are neither
next-of-kin nor have any interest in the estate of the deceased3 especially in the case where the
appointment of an executor had the testator's confidence, or the administration of the estate had long
been completed4, or upon the death of one of the grantors of a power of attorney5.
An administrator's authority6 will not be displaced in the absence of strong prima facie evidence of actual
misconduct or fraud7 or immediate danger of loss to the estate of the deceased8, unless the welfare of
the beneficiaries is affected9.
1 Liaw v Blikas [1965] 2 MLJ 9.
2 Canagasaby v Saravenamuttoo Vytilingam [1917] 2 FMSLR 185. As to citations see [330.316] and following.
3 Re Tang Pui Sim (decd) [1967] 2 MLJ 96, FC (Sing) .
4 Re Shaik Abdullah (decd) [1941] MLJ 6; Re Leong Thong (decd) [1933] MLJ 45.
5 Re Estate of Syed Abdullah bin Abdulrahman bin Sahil (decd) [1939] MLJ 179.
7 Robert Tan v Tommy Tan [1984] 1 MLJ 230 where the court dismissed the beneficiaries' claim that the transfer of shares
was void, as the gift of the 1,000 shares to the sole executor and trustee of the testator's will had, before the death of the
deceased, been perfected by the transfer to the said sole executor and there was nothing improper or fraudulent in such
transfer, notwithstanding the deceased was in a state of coma on the day the transfer and board resolution to approve the
transfer were dated; Jigarlal Kantilal Doshi v Damayanti Kantilal Doshi [1998] 1 SLR 211, [1998] 3 AMR 2590, where the
High Court of Singapore found the grounds of failure to render accounts by the defendants not sufficient to merit an order
to revoke the grant.
8 Sivanendran s/o V Markandoo v Dr Mahendran a/l V Markandoo [1988] 2 MLJ 169, SC , followed in Ting Su Lee v Lie
Nyuk Kie [2013] 8 MLJ 752.
9 Yap Tai Chee v Yap Tai Cheong [1910] 2 FMSLR 35, CA .

Page 266
[330.303]
Executor not to act while administration is in force
Where administration1 has been granted in respect of any estate2 of a deceased person, no person will
have power to bring any action or otherwise to act as executor3 of the deceased person in respect of the
estate comprised in or affected by the grant until the grant has been recalled or revoked4.
4 Probate and Administration Act 1959 (Act 97) s 5. See Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3
MLJ 61, FC . In Bumiputra Commerce Bank Bhd v Amanah Raya Bhd; Sivaloganathan Kanagasabai (Intervener) [2010] 4
CLJ 360, the applicant (Sivaloganathan) was an executor of the estate of Anna Runa Lana deceased and who had been
granted probate. Therefore, when the plaintiff obtained the order for sale by filing an action naming Amanah Raya as the
representatives of the estate, there already was in existence a duly appointed executor (Sivaloganathan) of the deceased's
estate. In the circumstances, the appointment of Amanah Raya contravened the Probate and Administration Act 1959 s 5
which provides that no person can act as executor until the grant is recalled or revoked.
[330.304]
Procedure for revocation
A writ beginning an action for the revocation of the grant of probate of the will, or letters of administration
of the estate of a deceased person may not be issued unless a citation has been issued1, or the probate
or letters of administration, as the case may be, has or have been lodged in the Registry of the High
Court2.
The preliminary steps to be taken by a party who desires to obtain the revocation of a grant of letters of
administration are to: (1) enter a caveat3; (2) follow it with the extraction of a citation4 to the
administrator5 to bring the grant into the Registry of the High Court; and (3) issue a writ (under the Rules
Court 2012)6. Where probate or administration with the will annexed has already been granted, an action
may be commenced to revoke the grant7.
If the Registrar is satisfied that a grant should be amended or revoked, he may make an order
accordingly8. However, no grant will be amended or revoked except on the application or with the
consent of the person to whom the grant was made unless in special circumstances9.
1 Ie issued under RC O 71 r 7: O 72 r 2(3). See Re Yap Hong Kai (decd) [2002] 5 MLJ 189, where it was held that the
citors need not initiate their application for citation by summons as stipulated in the repealed RHC O 72 r 18 (now RC O 72
r 18) as that Order is applicable only if there are no other provisions providing otherwise. The procedure for applying for a
citation is found in the repealed O 72 r 8 (now RC O 72 r 8) and there is no mention therein that the application for a
citation had to be made by summons. Also, the use of the word 'may' in the repealed O 72 r 18 (now RC O 72 r 18)
suggests that it is not mandatory; and it is only applicable in an application to the court in a 'probate cause or matter',
which refers to 'probate action' as defined in the repealed O 72 r 1(2) (now RC O 72 r 1(2)) to mean an action for the grant
of probate or letters of administration or for revocation of such grant or for a decree pronouncing for or against the validity
of an alleged will.
2 RC O 72 r 2(3).
3 As to caveats see [330.311]. Cf Re Yap Hong Kai (decd) [2002] 5 MLJ 189 (decd), where it was held that that for a
citation under the repealed RHC O 72 r 7 (now RC O 72 r 7), the prior entry of a caveat in Form 173 (now RC App A Form
164) is not required as it would serve no purpose at all as the letter of administration would already have been granted and
the citors' application is to revoke the grant. For the issue of a citation under RHC O 72 r 7, the prior entry of a caveat as
applicable under RHC O 71 (now RC O 71) for non-contentious probate proceedings, is not required. Since the object of a
Page 267
caveat is to prevent the issue of a grant of representation without notice to the person who has entered it, it is applicable
only to a fresh application for the grant of letters of representation; not after such grant. There is no requirement in the
repealed RHC for the entry of a caveat as a precondition for the issue of a citation under O 72 r 7 (now RC O 72 r 7). The
requirement of the repealed RHC O 71 r 41(3) (now RC O 71 r 41(3)) does not apply in respect of a citation issued under
the repealed O 72 r 7: Yap Teck Ngian v Yap Hong Lang @ Yap Fong Mei [2006] 6 MLJ 607, CA . See also Priyakumary
Muthucumaru v Gunasingam a/l Ramasingam (a bankrupt) [2006] 6 MLJ 511, CA .
4 As to citations see [330.316] and following. The citor must file an affidavit verifying the statements of fact to be made in
the citation as required under the RC O 72 r 8(2): see Re Yap Hong Kai (decd) [2002] 5 MLJ 189.
6 See Re Tay Tuan (decd) [1962] MLJ 285.
7 Dr Shanmuganathan v Periasamy Sithambaram Pillai [1997] 3 MLJ 61, FC , where it was held that after the caveat was
lodged and the citation was served, the defendant ought to have taken immediate steps to propound the will so that the
sole issue could have been resolved without delay.
8 RC O 71 r 36(1). See [330.300]; Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will
annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90.
9 RC O 71 r 36(1) proviso.
Page 268
Administration and Succession/(2) Executors and Administrators/(1) Office of Representative/ H. Revocation
of Grants/ (ii) Effect of Revocation
(ii) Effect of Revocation
[330.305]
Effect of revocation generally
Where a grant of representation is revoked1, all payments and dispositions made in good faith2 to a
personal representative3 under the grant before the revocation are a valid discharge to the person
making the same, and the personal representative who acted under the revoked representation4 may
retain and reimburse himself in respect of any payments or dispositions made by him which the person
to whom representation is afterwards granted might have properly been made5.
1 As to when and how a grant may be revoked see [330.300] and following.
2 See E Gopal v Awang bin Mona [1978] 2 MLJ 251; PP v Tunku Mahmood Iskandar (1977) 2 MLJ 123.
5 Probate and Administration Act 1959 (Act 97) s 64(2). As to the remuneration of personal representatives see [330.282]
and following.
[330.306]
Payment made in good faith upon grant
Every person, making or permitting to be made any payment or disposition in good faith1 under probate
or letters of administration will be indemnified and protected in so doing2, notwithstanding any defect or
circumstances whatsoever affecting the validity of the probate and letters of administration3.
1 See [330.305] note 2.
2 See [330.305].
3 Probate and Administration Act 1959 (Act 97) s 64(1). For the meaning of 'probate' see [330.244] note 7. For the
meaning of 'administration' see [330.244] note 8.
[330.307]
Validity of conveyance not affected by revocation of representation
All transfers and conveyances of any interest in movable and immovable property1 made to a purchaser2
by a person to whom probate or letters of administration3 have been granted, are valid4, notwithstanding
any subsequent revocation5 or variation of the probate or administration6.
Page 269
2 'Purchaser' means a lessee, mortgagee or other person who in good faith acquires an interest in property for valuable
consideration, also an intending purchaser, and 'valuable consideration' includes marriage, but does not include a nominal
consideration in money: Probate and Administration Act 1959 (Act 97) s 2. As to what is good faith see [330.305] note 2.
3 For the meaning of 'probate' see [330.244] note 7. For the meaning of 'administration' see [330.244] note 8.
4 Kersah La'usin v Sikin Menan [1966] 2 MLJ 20 where it was held that the unregistered transfer of the land gave the
purchaser a contractual right which on his death vested in his personal representative.
5 As to when and how a grant may be revoked see [330.300] and following.
6 Probate and Administration Act 1959 s 64(3). See Ng Lit Cheng v Felixia Varnakulasinghe [1977] 2 MLJ 249, FC , where
upon the approval by the court of the sale agreement, the rights of the bona fide purchaser for value without notice of any
equity in the land, crystallised; Chay Chong Hwa v Seah Mary [1987] 1 MLJ 173, PC (Sing) , where the Privy Council held
that the purchaser's insistence upon the extraction and production of the actual grant of letters of administration from the
administrator was both justified and necessary. See also Wayrex Sdn Bhd v Lee Ewe Bee [2012] 1 MLJ 358, CA .
Page 270
Administration and Succession/(2) Executors and Administrators/(2) Application for Grant of Letters of
Representation/ A. Practice and Procedure
(2) APPLICATION FOR GRANT OF LETTERS OF REPRESENTATION

A. PRACTICE AND PROCEDURE
[330.308]
Application for grant of letters of representation
Letters of representation may either be granted in common form or in solemn form1. Where there is no
dispute2, letters of representation in common form are granted in accordance with non-contentious
probate proceedings rules3. Where there is a dispute, the proceedings become contentious and any
administration action for the administration under the direction of the court4 of the estate of the deceased
person or for the execution under the direction of the court of a trust5 will be in solemn form. An
administration action may be begun by writ6 or by originating summons7.
Where there is a valid will with an executor or executors8 so named in the will9, and in the absence of any
other action in court questioning the validity of the will10, the executor(s) so named will file in an originating
summons supported by an affidavit11 for a grant of probate of the estate of the testator at the Registry of
the Civil Division of the High Court.
1 As to probate in common form see [330.341] and following; as to probate in solemn form see [330.364] and following.
2 Ie where there is no dispute that the representation be granted to the applicants.
3 As to non-contentious probate proceedings see RC O 71. An application for such grant must be made by way of
originating summons in Form 6 and supported by an affidavit setting out the information in Form 159 and any other
information and/or documents as the Registrar may require: see O 71 r 5; and an administrator ad litem cannot be appointed
by way of motion (ie under the repealed RHC 1980): see Oh Jin Ghee v Abdul Hameed [1952] MLJ 108.
4 See RC O 80 r 2(3)(e). See also Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457.
5 RC O 80 r 1.
6 In contentious proceedings, a probate action (see RC O 72 r 1(2) and [330.364]) must be instituted by way of writ in the
High Court: see O 72 r 2(1). See Debaroti Das Gupta v Deb Brata Das Gupta [2015] 7 MLJ 605. See also Ng Wan Siew v
Teoh Sin [1963] MLJ 103, CA , where the court held that the proceedings to decide whether a stranger was the adopted or
natural son of the deceased should be commenced by writ when it was known that there was going to be a conflict of
testimony; Re Yeow Chow Beng (decd) [1998] 2 MLJ 330, [1998] 1 AMR 690 where it was decided that the later will of the
deceased in the possession of the caveator should be proceeded as a contentious probate action and not disposed of
summarily; Tok Siew Ling v Low Chee Choy [2014] 9 MLJ 787.
7 See Atkin's Court Forms Malaysia Civil Proceedings: Administration of Estates I [23]. As to the commencement of a
contentious suit by a caveator entering appearance see Fatimah Bee @ Batcha Ammal v Mohideen Batcha [1946] MLJ 112,
CA . As to proceedings which may be begun by writ or originating summons see CIVIL PROCEDURE (2014 Reissue)
[190.2-005].
9 As to the order of priority for grant where a deceased left a will see RC O 71 r 17.
11 Ie RC App A Forms 6 and 159: see RC O 71 r 5(1). See also Re Azhar Azizan Harun (as the absolute representative of
Eleanor Dulcie Robinson) [1998] 7 MLJ 89, [1999] 2 AMR 1596 where although the repealed RHC O 71 r 5(1) appears to
prohibit any variation of Form 168 (now Form 159) the provisions of the repealed RHC O 1 r 7 and RHC O 71 r 5(6) (now
RC O 1 r 7 and RC O 71 r 5(6)) dispel such prohibition.
Page 271
[330.309]
Personal applications
A personal applicant may apply for a grant at the Registry of the Civil Division of the High Court1. He must
produce a death certificate2 of the deceased or such other evidence of the death3 as the Registrar may
approve4 and supply all information necessary to enable the papers leading to the grant to be prepared for
filing at the Registry. Every oath5, affidavit or bond required on a personal application (other than a bond
given by a corporation6) must be sworn or executed before a Commissioner for Oaths7.
1 RC O 71 r 3(1). A personal applicant may not apply through an agent: see O 71 r 3(2). As to the circumstances when
personal applications are not received see O 71 r 3(3).
2 Re Will and Codicil of Tan Tye (decd) (British and Malayan Trustees Ltd, applicants) [1994] 3 SLR 407, where the court
accepted that the information concerning the date of birth of the testator's eldest daughter as contained in her death
certificate was prima facie evidence of her date of birth.
3 Re Karupaya (decd) [1962] MLJ 128 where the fact of death is not in doubt, and the applicant can swear that death had
occurred, no order is required on any application for probate or grant of letters of administration to swear that death had
taken place; Chia Kay Heng v Chia Kim Siah [1989] 1 MLJ 272 where it was held that as a matter of evidence and in the
absence of other admissible evidence to the contrary, a death certificate or certified extract of it is primary evidence of the
death of the person named in it. See Practice Note No 9 of 1946.
4 RC O 71 r 3(6).
5 As to oaths and affirmations see CIVIL PROCEDURE (2014 Reissue) [190.7-004].
6 See RC O 71 r 34. As to administration bonds see [330.468].
7 RC O 71 r 3(6).
[330.310]
Discretion of court as to persons to whom administration is to be granted
In granting administration1, the court2 must have regard to the rights of all persons interested in the
estate3 of the deceased person or in the proceeds of sale of the estate4.
In the absence of a will and any challenge to the person petitioning for letters of administration, the person
so applying for the letters of administration will be the person or persons5 interested in the residuary
estate of the deceased6, unless by reason of the insolvency of the estate or other special circumstances
the court thinks it expedient to grant administration to some other person7.
4 Probate and Administration Act 1959 (Act 97) s 30. See Re Tan Chwee Boon (decd), Yap Suat Tee v Cherie See Cheng
Choo [1966] 1 MLJ 284, FC , where the Probate and Administration Ordinance (Cap 17) (Sing) s 18(2) (now repealed by the
Probate and Administration Act (Cap 251) s 18(2)) (which is similar to the Probate and Administration Act 1959 s 30) was
cited; Yap Kee Par v Molly Yap [1996] 4 MLJ 219 where it was held that the Probate and Administration Act 1959 s 30 gives
the court a wide discretion as to persons to whom administration is to be granted, enabling the court to pass over a person
otherwise entitled to a grant and that any such administration may be limited in any way the court thinks fit, as the one object
which the court keeps in view is the expeditious and economical administration of estates of deceased persons; Re Vanena
Katha Pillay Marican (decd) [1934] MLJ 205, CA (Sing) ; Re Hameed Nachial (decd) [1936] MLJ 122; HSBC (M) Trustee
Bhd v Kong Kim Hoh [1999] 3 MLJ 383. As to the duty of the Registrar on receiving an application for a grant see RC O 71 r
4.
Page 272
5 In Malaysia (West Malaysia and State of Sarawak while the State of Sabah retains its own Intestate Succession Ordinance
1960 (Ord No 1 of 1960): see s 7), the distribution of a non-Muslim and non-native of Sarawak intestate's assets is governed
by the provisions of the Distribution Act 1958 (Act 300): see s 6; Re Chia Eng Say (decd) [1951] MLJ 119; Law Hap Lien v
Henry Lo Siak Jin [1983] 1 MLJ 381. In Re Jeeva Singh (decd) [1931] SSLR 13 the court in exercising its jurisdiction
preferred the widow to the next-of-kin; in Tam v Wateh [1963] MLJ 141, letters of administration were granted to the
grandson of the deceased not because he was entitled to a share in the estate of the deceased but because he was thought
to be a suitable person to be granted administration; in Re Tan Chwee Boon (decd), Yap Suat Tee v Cherie See Cheng
Choo [1966] 1 MLJ 284, FC , the Federal Court granted the grant to the first widow and her children by the deceased; the
children of the second widow who were minors did not constitute special circumstances for them to be passed over; in Yap
Kee Par v Molly Yap [1996] 4 MLJ 219 the deceased's widow had equal rights but no priority over her child or children by the
deceased to petition for letters of administration; in Ong Ka Kim v Wong Sing Kiong [1997] 5 MLJ 46, the deceased's
widower was at the top of the priority by virtue of the Distribution Act 1958 s 6 as he was beneficially and wholly entitled to
the estate. The conditions to be fulfilled in an application for a letter of administration under the Probate and Administration
Act 1959 are that the petitioner must be a lawful beneficiary with an interest in the deceased's estate and that the deceased
possessed property at the time of his death: see Ng Sook Hooi v Ng Kim Seng [2001] MLJU 368.
6 Re Chong Swee Lin, Kam Soh Keh v Chan Kok Leong [1997] 4 MLJ 464.
7 Probate and Administration Act 1959 s 30 proviso. See HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383. For
examples of special circumstances see Re Bigg's Estate [1966] P 118, [1966] 1 All ER 358 (letters of administration granted
to the deceased's niece, passing over an executor who had intermeddled but refused to prove the will); Re Newsham [1966]
3 All ER 681 (grant made passing over the widow of the deceased so as not to prejudice an insurance claim); Re Morgans
(1931) 145 LT 392 (grant made to a stranger on disagreement of next-of-kin); Re S [1968] P 302, [1967] 2 All ER 150 (grant
of administration with the will annexed granted to the daughters of the sole executrix, where the sole executrix and
beneficiary was in prison for the manslaughter of the deceased), following and explaining Re Crippen [1911] P 108,
[1911-13] All ER Rep 207. See also Re Clore [1982] Fam 113, [1982] 2 WLR 314, affd [1982] Ch 456, [1982] 3 All ER 419,
CA (Eng) , where it was held that 'special circumstances' were not limited to circumstances connected with the estate or its
administration but extend to any relevant circumstances (in this case, the conduct of the executors in relation to the estate
and the fact that they lived abroad), disapproving dicta of Willmer J in Re Taylor [1950] 2 All ER 446 at 448; Yap Kee Par v
Molly Yap [1996] 4 MLJ 219 at 225, where it was held that one object which the court keeps in view is the expeditious and
economical administration of estates of deceased persons (see also Re Grundy (1868) LR 1 P & D 459), and that the
conduct of the parties is a factor in the exercise of the court's discretion.
[330.311]
Caveats
Any person who wishes to ensure that no grant of probate or letters of administration is sealed without
notice to himself may enter a caveat1 in any registry2. The caveator (the person who enters a caveat) may
do so by filing the prescribed form3 in the Registry and obtaining an acknowledgement of entry from the
proper officer, or by sending through the post at his own risk the caveat form to the Registry4. Where the
caveat is entered by a solicitor on the caveator's behalf, the name of the caveator must be stated5.
The Registrar of the Principal Registry6 must maintain an index of caveats entered in all Registries and on
receiving a notice of an application for a grant made in any Registry or to a Land Administrator7 he must
cause the index to be searched and must notify the appropriate Registrar or Land Administrator in the
event of a caveat having been entered against the sealing of a grant for which application has been made
in the Registry or to the Land Administrator8. Except as otherwise provided9, a caveat will remain in force
for six months from the date on which it is entered and will then cease to have effect10, without prejudice
to the entry of a further caveat or caveats11. The Registrar must not make any grant if he has knowledge12
of an effective caveat in respect of it13. However, no caveat will operate to prevent the making of a grant
on the day on which the caveat is filed14.
Where a caveat has been lodged15, the onus is on the caveator to prove entitlement to the grant16.
1 A caveat pursuant to the RC is similar in nature to a private caveat pursuant to the National Land Code (Act No 56 of
1965) (see [250] LAND (2009 Reissue)) filed by a beneficiary of an estate claiming a right to title to, or any registrable title, or
any registrable interest in, any alienated land or even claiming only a right to such title or registrable interest. However, a
caveat filed pursuant to the Rules of Court 2012 cannot be entered to stop proceedings relating to the estate once
representation has been granted to any petitioner and extracted; proceedings can only be stopped by revoking the grant of
Page 273
representation. As to revocation of grants see the Probate and Administration Act 1959 (Act 97) s 34, [330.300] and
following. Both the cases of Lee Ah Thaw v Lee Chun Tek [1978] 1 MLJ 173, FC , and Khoo Teng Seong v Khoo Teng Peng
[1990] 3 MLJ 37 applied the established principle that where the administration is incomplete, the legatee of a share in the
residue has no (caveatable as under the National Land Code) interest in any of the property of the testator until the residue
has been ascertained. However, in Law Hap Lien v Henry Lo Siak Jin [1983] 1 MLJ 381, it was held that since the residue of
the estate had been ascertained, the beneficiary had a caveatable interest. In Tan Heng Poh v Tan Boon Thong [1992] 2
MLJ 1, SC , the residuary beneficiary who was entitled only to one-sixth share of the estate where administration was still
incomplete had no caveatable claim to title or registrable interest in the lands of the estate under the National Land Code; in
Teng Hung Ping v Hoan Siew Choo @ Fan Siew Choo [1993] 1 AMR 929, where the court held that the plaintiff
administrator did not have a registered interest or estate in the land as required by the Sarawak Land Code (Cap 81) s
177(1) and hence he had no locus standi to apply for the removal of the caveat, but he could utilise s 178 to enable the
transfer of the land to himself to be registered. See also Moran v Place [1896] P 214 at 216, CA (Eng) .
2 RC O 71 r 37(1). When a caveat is entered no grant of probate will be made without notice to the caveator until it is
removed or it ceases to have any effect: see RC O 71 r 37(7) and Leong Chee Kong v Tan Leng Kee [1999] 4 MLJ 537.
3 Ie RC App A Form 164: see RC O 71 r 37(3). In Kasi s/o Arunachalam Chettiar v AR Kaveri Achi [1998] 2 MLJ 751, CA ,
the Court of Appeal held that it is the caveator or his solicitor who must sign the form. There is no provision for an attorney to
sign the form and the caveator's name must be entered as the person having interest to be protected even though the form
is signed by his solicitor, if he or she is so represented.
4 RC O 71 r 37(3).
5 RC O 71 r 37(4).
6 See [330.300] note 2.
7 'Land Administrator' has the same meaning assigned to it as in the Small Estates (Distribution) Act 1955 (Act 98): RC O 71
r 2. Note that the Small Estates (Distribution) (Amendment) Act 2008 (Act A1331) (which came into effect from 1 September
2009 vide PU (B) 320/2009) s 2 substituted the word 'Collector' with the words 'Land Administrator': see [330.758] note 7. As
to small estates see [330.756] and following.
8 RC O 71 r 37(6).
9 As to the effect of a caveat upon the commencement of a probate action see RC O 71 r 40. As to what is a probate action
see O 72 r 1(2) and [330.364].
10 In Mohamed Daud bin Haji Mohamed Tahir v Habibah binti Badu Rahman [1959] 1 MLJ 55, the court held that once the
caveat lapsed through the failure of the caveator to renew it within six months, the business in respect of which that caveat
was lodged automatically ceased to be contentious and that an ineffective caveat precluded the defendants from opposing
the grant of the letters of administration.
11 RC O 71 r 37(5).
12 Warning pursuant to RC O 71 r 37(8) in RC App A Form 165 ('Warning to Caveator') (see [330.312]) must be drawn to
the attention of the Registrar. The onus is on the person warning to issue out the warning as soon as a caveat is entered.
Notification is given from the Principal Registry to the Registry hearing the grant of probate or letters of administration. The
front cover of the file of the Registry concerned should be stamped (Caveat No .. Dari . Ke ), stating the duration of the
caveat. Currently the caveat in Form 164 when sent to the Registry hearing the application for the grant is merely given an
enclosure number. This procedure needs to be reconsidered for effectiveness.
13 RC O 71 r 37(7).
15 See Shamugam v Pappah [1994] 1 MLJ 144 at 149 where Edgar Joseph Jr SCJ was of the view that it would be more
appropriate for either the plaintiff or defendant to have applied by way of petition for a grant of letters of administration to the
estate of the deceased and for the opposite party to have entered a caveat, whereupon the judge could direct that an issue
be tried, instead of applying for a declaration.
16 Re Ho Khian Cheong (decd) [1963] MLJ 316; Re Teo Quee Kee (decd) [1997] 3 SLR 1030; Re Yeow Chow Beng (decd)
[1998] 2 MLJ 330, [1998] 1 AMR 690.
[330.312]
Warnings
Page 274
A caveat1 may be warned by the issue from the Registry of a warning2 at the instance of any person
interested ('the person warning') which must state his interest3 and, if he claims under a will, the date of
the will, and must require the caveator to give particulars of any contrary interest which he may have in the
estate of the deceased4. No representation may be made to the petitioner until the caveator has been
given opportunity to contest the right of any petitioner to representation5.
1 As to the purpose of caveats see [330.311].
2 Ie in RHC App A Form 165: see RC O 71 r 37(8). See Leong Chee Kong v Tan Leng Kee [1999] 4 MLJ 537 where the
plaintiffs' caveat caused the defendant to issue a warning through the Registrar to the plaintiffs.
3 As to the extent of attorney's authority to enter caveats see Fatimah Bee @ Batcha Ammal v Mohideen Batcha [1946] MLJ
112, CA . The Probate and Administration Act 1959 (Act 97) s 33 provides that the caveator must be a person with interest:
see Kasi s/o Arunachalam Chettiar v AR Kaveri Achi [1998] 2 MLJ 751, CA .
4 RC O 71 r 37(8). See Re Yeow Chow Beng (decd) [1998] 2 MLJ 330, [1998] 1 AMR 690 where it was held that
compliance with the requirement as mandated by the repealed RHC O 71 r 37(8) would ensure that sufficient materials are
placed before the court to enable it to act under the said provision; Lim Siew Kim v Leow Ya Seng [1998] 7 MLJ 334 where
the court dismissed the application of the plaintiff as the caveator was not served with the required RHC App A Form 174
(repealed) (now RC App A Form 165) being the 'Warning to Caveator'.
5 Probate and Administration Act 1959 s 33. For the meaning of 'representation' see [330.256] note 1.
[330.313]
Appearance by caveator
A caveator having an interest1 contrary to that of the person warning2 may, within eight days of service of
the warning upon him inclusive of the day of such service, or at any time thereafter if no affidavit has been
filed by the person warning after the time limited for appearance by the caveator has expired3, enter an
appearance in the Registry by filing in the prescribed form of appearance4 and must serve on the person
warning and the Registrar of the Principal Registry5 a copy of the form of appearance sealed with the
Registry seal6.
A caveator having no interest contrary to that of the person warning but wishing to show cause against the
making of a grant to that person may within the same time, issue and serve a notice of application for
directions returnable before the Registrar7.
1 See Re Yeow Chow Beng (decd) [1998] 2 MLJ 330, [1998] 1 AMR 690 where it was held that the appearance entered by
the caveator was in accordance with the strict requirements of RHC App A Form 175 (repealed) (now RC App A Form 166)
(see RHC O 71 r 37(10) (repealed) (now RC O 71 r 37(10)) notwithstanding the absence of particulars of the caveator's
interest as there were no specific provisions in Form 175 requiring the caveator to state such particulars of interest.
Further, the repealed O 1 r 7 (now RC O 1 r 7) can authorise variations in Form 175.
2 See [330.312].
3 See RC O 71 r 37(12).
4 Ie RC App A Form 166: see note 1 above. See also Fatimah Bee @ Batcha Ammal v Mohideen Batcha [1946] MLJ 112,
CA , where the Court of Appeal held that a contentious suit has commenced as soon as appearance of the warning has
been issued; Leong Chee Kong v Tan Leng Kee [1999] 4 MLJ 537, where the matter is deemed to be a contested matter
upon an appearance being entered in consequence to the warning of the caveat; see RC O 71 r 37(14).
5 See [330.300] note 2.
6 RC O 71 r 37(10). See Re Yeow Chow Beng (decd) [1998] 2 MLJ 330, [1998] 1 AMR 690.
7 RC O 71 r 37(11).
Page 275
[330.314]
Non-appearance of caveator
A caveator who has not entered an appearance in the prescribed form1 to a warning2 may at any time
withdraw his caveat3 by giving notice at the Registry and serving a copy of it on the Registrar of the
Principal Registry4 and the caveat will thereupon cease to have effect, and if he had been warned, the
caveator must give notice of withdrawal of the caveat to the person warning5. If the time limited for
appearance has expired and the caveator has not entered an appearance, the person warning may file in
the Registry an affidavit showing that the warning was duly served and that he has not received a notice of
application for directions6 and thereupon the caveat will cease to have effect7.
1 Ie RC App A Form 166: see RC O 71 r 37(9).
2 See [330.312].
4 See [330.300] note 2.
5 RC O 71 r 37(9).
6 See RC O 71 r 37(11) and [330.313].
7 RC O 71 r 37(12). See Lim Siew Kim v Leow Ya Seng [1998] 7 MLJ 334 where the defendant executors averred that they
were unaware of the existence of the continuous caveats.
[330.315]
Subsequent proceedings
Unless the Registrar by order made on notice of application1 otherwise directs:
(1) any caveat2 in force at the commencement of proceedings by way of citation3 or originating
summons 4 will, unless withdrawn5, remain in force until an application for a grant is made
by the person shown to be entitled to a grant by the decision of the court in the proceedings,
and upon such application any caveat entered by a party who had notice of the proceedings
will cease to have effect6;
(2) any caveat in respect of which an appearance7 to a warning8 has been entered, will remain
in force until the commencement of a probate action9;
(3) the commencement of a probate action will, whether or not any caveat has been entered,
operate to prevent the sealing of a grant (other than a grant pendente lite10) until an
application for a grant is made by the person shown to be entitled to it by the decision of the
court in such action, and upon such application any caveat entered by a party who had
notice of the action, or by a caveator who was given notice11, will cease to have effect12.
1 See [330.323].
3 See [330.316].
4 See generally [190] CIVIL PROCEDURE (2014 Reissue).
5 As to withdrawal of caveats see [330.314].

Page 276
6 RC O 71 r 40(a).
7 As to appearance by the caveator see [330.313].
8 As to warnings see [330.312].
9 RC O 71 r 40(b). As to what is a probate action see O 72 r 1(2) and [330.364].
10 See the Probate and Administration Act 1959 (Act 97) s 19 and [330.452].
11 Ie notice of the commencement of a probate action: see RC O 71 r 39.
12 RC O 71 r 40(c). See Lim Siew Kim v Leow Ya Seng [1998] 7 MLJ 334.
[330.316]
Citations
A citation is a form issued from the Registry1, containing a recital of the reason for its issue and the
interest of the party extracting it, and calling upon the party cited2 to enter an appearance and take the
steps specified in it. A citation is employed for non-contentious matter and its purpose is to compel all
persons having a prior right to a grant to take the grant, and, in default, the citor may apply for the grant
himself3. A citation must be directed to all such persons so that each one has an opportunity to apply for a
grant.
The citor must enter a caveat before issuing a citation4. Every averment in a citation5, and such other
information as the Registrar may require, must be verified by an affidavit sworn by the citor or, if there are
two or more citors, by one of them6. In special circumstances the Registrar may accept an affidavit sworn
by the citor's solicitor7. Every will referred to in the citation must be filed in the Registry before the citation
is issued, except where the will is not in the citor's possession and the Registrar is satisfied that it is
impracticable to require it to be filed8.
1 RC O 71 r 41(1).
2 If the party cited is the executor, then the executor must have delayed or declined to apply for a grant of probate. See the
Probate and Administration Act 1959 (Act 97) s 9 on constructive renunciation by an executor or any person having a prior
right to representation. As to executors see [330.243], [330.244].
3 See RC O 71 r 42(5)(a). Citation either involves ordering the person so cited to appear before the court to prove or
renounce probate of the will.
4 RC O 71 r 41(3). As to the purpose of caveats see [330.311].
5 Ie RC App A Form 167: see RC O 71 r 41(1).
6 RC O 71 r 41(2).
8 RC O 71 r 41(5).
[330.317]
Service of citations
Every citation1 must be served personally on the person cited unless the Registrar, on cause shown by
affidavit, directs some other mode of service, which may include notice by advertisement2.
Page 277
1 As to the purpose of citations see [330.316].
2 RC O 71 r 41(4). As to service see further CIVIL PROCEDURE (2014 Reissue) [190.2-038] and following.
[330.318]
Appearance by person cited
A person cited may, within eight days of the service of the citation1 upon him, inclusive of the day of
service, or at any time thereafter if no application for certain orders2 has been made by the citor, enter an
appearance3, and must thereafter serve on the citor a copy of it sealed with the seal of the court4.
Where the citor, after the citee has entered appearance, desires that the matter ought to proceed as a
contentious probate, he will have a writ issued5. The citee may file a counterclaim as to why he has a prior
right for the grant of representation6.
1 As to the purpose of citations see [330.316]; as to the service of citations see [330.317].
2 See RC O 71 rr 42(5), 43(2).
3 Ie in RC App A Form 166: see RC O 71 r 41(6).
4 RC O 71 r 41(6).
5 See RC O 72 r 2(1) and [330.364].
6 See RC O 72 r 12 and [330.369].
[330.319]
Citations to accept or refuse a grant
A citation1 to accept or refuse a grant may be issued by the High Court at the instance of any person who
would himself be entitled to a grant in the event of the person cited renouncing his right to the grant2. The
person cited is thereby compelled to accept or refuse a grant. He can accept by an application ex parte by
notice of application3 to the Registrar for an order for a grant on filing affidavit evidence4 showing that he
has entered an appearance5 and that he has now been served by the citor with notice of any application
for a grant to himself6. If the person cited has entered an appearance but has not applied for a grant or
fails to prosecute his application with reasonable diligence the citor may apply by summons to the
Registrar for an order for a grant to himself and the noticce of application must be served on the person
cited7. If the time limited for appearance has expired and the person cited has not entered appearance,
the citor may apply for an order for a grant to himself8, but not otherwise9.
Where power to make a grant to an executor10 has been reserved, a citation calling on him to accept or
refuse a grant may be issued at the instance of the executors who have proved the will or of the executors
of the last survivor of the deceased executors who have proved11.
2 RC O 71 r 42(1). As to renunciation see [330.262] and following.
3 As to notice of application see [330.323].

Page 278
4 As to affidavit evidence see CIVIL PROCEDURE (2014 Reissue) [190.7-003].
5 As to appearance by the person cited see [330.318].
6 RC O 71 r 42(4).
7 RC O 71 r 42(7)(a). In Oh Jin Ghee v Abdul Hameed [1952] MLJ 108, it was held that where it is necessary that a
representative of the deceased should be made a party to a pending suit and the person otherwise entitled to administration
is unable or is unwilling to act, administration limited for the purpose of the suit may be granted to the nominees of any party
to it.
8 RC O 71 r 42(5)(a). An application under RC O 71 r 42(5) must be supported by an affidavit showing that the citation was
duly served and that the person cited has not entered an appearance: RC O 71 r 42(6).
9 Canagasaby v Saravenamutto Vytilingam [1917] 2 FMSLR 185, where an application for a grant made without citing
parties, who ought to have been cited, was revoked.
11 RC O 71 r 42(2).
[330.320]
Citation of executor de son tort
At any time after the expiration of six months from the death of the deceased1, a citation2 may be issued
at the instance of any person interested in the deceased's estate calling upon an executor who has
intermeddled in the estate3 of the deceased to show cause why he should not be ordered to take a grant4.
However, no citation to take a grant may issue while proceedings as to the validity of the will5 are
pending6.
The person cited, if he is willing to accept or take a grant, may apply ex parte by summons7 to the
Registrar for an order for a grant on filing an affidavit showing that he has entered an appearance8 and
that he has now been served by the citor with notice of any application for a grant to himself9. If the time
limited for appearance has expired and the person cited has not entered appearance, the citor may apply
to the Registrar by notice of application, which must be served on the person cited, for an order requiring
such person to take a grant within a specified time, or for a grant to himself or some other person specified
in the notice of application10.
1 Re Vanena Katha Pillay Marican (decd) [1934] MLJ 205, CA (Sing) ; Re Hameed Nachial (decd) [1937] MLJ 98, CA ; Re
Teo Oon Soon (decd) [1938] MLJ 115.
3 As to executors de son tort see [330.269] and following.
4 RC O 71 r 42(3).
9 RC O 71 r 42(4).
10 RC O 71 r 42(5)(c).
Page 279
[330.321]
Citation to propound a will
In the event there is a claim that there is another will in existence made by someone who fails to take
positive steps to justify the claim, any person1 having an interest contrary to that of the executors2 or such
other persons3 may obtain a citation to propound such alleged will4 against the executors named in the
will and to all persons interested under the will5. The citation must be directed to the executors named in
the will and to all persons interested under the will6.
If the time limited for appearance has expired and no person cited has entered an appearance7, or if no
person who has appeared proceeds with reasonable diligence to propound the will, the citor may apply by
way of notice of application8 for an order for a grant as if the will were invalid9.
1 See Re Vanena Katha Pillay Marican (decd) [1934] MLJ 205, CA (Sing) , where the will of the deceased was propounded
by the caveator.
3 Udham Singh v Indar Kaur [1971] 2 MLJ 263, FC , where the court held that the burden of proving testamentary capacity
rested on the propounder of the will. As to testamentary capacity see [330.009]-[330.012].
4 See RC O 71 r 43(1). As to the purpose of citations see [330.316].
5 See Lee Tjin Nam @ George Lee Chin Nam v Lie Chin Man [1996] 1 CLJ 83 where the youngest son of the deceased
opposed the grant of probate to the plaintiff executor who sought to propound the last will of the deceased; Khaw Cheng Bok
v Khaw Cheng Poon [1998] 3 MLJ 457 where the plaintiffs propounded an earlier sets of wills, while three of the defendants
propounded a later set of wills and two of the defendants propounded the intestacy of the deceased.
6 RC O 71 r 43(1).
9 RC O 71 r 43(2).
[330.322]
Citation to bring in grant
On the application of the plaintiff, or of any other party who has pleaded in a probate action1, a citation2
may be issued against any person not a party to the action who has an adverse interest to the applicant
notifying him that if he does not enter an appearance in the action judgment may be given in the action
without further notice to him3. Where a person on whom such citation is served fails to enter an
appearance4 in the action, the party on whose application the citation was issued will not be entitled to be
heard at the trial of the action without the leave of the court unless he has filed an affidavit proving due
service of the citation on that person5.
Before the citation is issued an affidavit verifying the statements of fact to be made in the citation must be
sworn by the applicant6. However, the court may in special circumstances allow the affidavit to be sworn
by the applicant's solicitors7.
1 As to what is a probate action see RC O 72 r 1(2) and [330.364].
3 RC O 72 r 5(1).
Page 280
5 RC O 72 r 5(2).
6 RC O 72 r 8(2). As to oaths and affirmations see CIVIL PROCEDURE (2014 Reissue) [190.7-004]. The procedure for applying
for a citation is as provided for under RC O 72 r 8. Order 72 r 8 is only applicable to all applications made after a probate
action has been filed and initiated. In any event, the words 'probate cause' in O 72 r 18 refer to 'probate action' as defined
under O 72 r 1(2) and does not appear to include a simple application for the issue of a citation under O 72 r 7, which is at
the pre-issuance stage of a writ: see Yap Teck Ngian v Yap Hong Lang @ Yap Fong Mei [2006] 6 MLJ 607, CA .
[330.323]
Notice of application
Applications by way of notice of application are made to the Registrar in the following non-contentious
matters, inter alia:
(1) where there is an additional person to be added as personal representative1;

(2) where there is a dispute between two or more persons entitled in the same degree to take a
grant2;
(3) for an assignment of administration bond3;
(4) when the party cited has entered an appearance4 but taken no further step, for an order to
accept or refuse a grant5;
(5) for an order requiring a person to bring in a will or to attend for examination6; and
(6) for inventories7 and accounts8.
1 See RC O 71 r 21(1). An application under this provision is made pursuant to the Probate and Administration Act 1959
(Act 97) s 4(2). As to personal representatives see [330.242] and following.
2 See RC O 71 r 22(2).
3 See RC O 71 r 34(8). As to administration bonds see [330.468].
4 As to appearance by the person cited see [330.318]. As to the purpose of citations see [330.316].
5 See RC O 71 r 42(5).
6 See RC O 71 r 45. For an order admitting to prove a nuncupative will, or a will contained in a copy, a completed draft, a
reconstruction or other evidence or its contents where the original will is not available, an application may be made to the
court by originating summons: RC O 71 r 46(1). Where a will is not available owing to its being retained in the custody of a
foreign court or official, a duly authenticated copy of the will may be admitted to proof by virtue of the Probate and
Administration Act 1959 s 27 without any such order: RC O 71 r 46(1) proviso.
7 As to the duty of personal representatives in relation to inventories see the Probate and Administration Act 1959 s 62.
8 In Fhong Sheng Cheung v Huan Chak Chon [1999] 7 CLJ 288, it was held that as the defendants were not named as
executors and were not granted probate of the will, the defendants were not entitled to claim that they were legally entitled to
deal with the assets of the deceased and that the plaintiffs must establish that they had a sufficient interest under the will to
be able to call for an account and so by reason of the repealed RHC O 43 r 1(3) no order for accounts should be made. As
to the duty to keep accounts see [330.727].
[330.324]
Serious issues to be decided

Page 281
A probate action1 is the proper procedure for deciding serious issues.
1 As to what is a probate action see RC O 72 r 1(2) and [330.364].
[330.325]
Evidence of foreign law
In non-contentious probate proceedings, where evidence of the law of a country outside Malaysia is
required on any application for a grant, the affidavit of any person who practises, or has practised, as a
barrister or advocate in that country and who is conversant with its law1 may be accepted by the Registrar
unless the deponent is a person claiming to be entitled to the grant or his attorney, or is the spouse of any
such person or attorney2. However, the Registrar may in special circumstances accept the affidavit of any
other person who does not possess the required qualifications if the Registrar is satisfied that by reason of
such person's official position or otherwise he has knowledge of the law of the country in question3.
1 Re Syed Hussain bin Omar bin Shahab (decd) [1939] MLJ 69 where it was held that a foreign will may at the discretion of
the court be admitted to probate upon proof of death and either upon proof that the will has been recognised as a valid
testament in the court of the testator's domicile, or upon proof by affidavit of an expert of the law of the country in question
that the will is a valid testament by the law of that country.
2 RC O 71 r 16. See Re Syed Hussain (decd) [1939] MLJ 69.
3 RC O 71 r 16 proviso.
Page 282
Representation/ B. Instruments Entitled to Probate/ (i) Wills in Malaysia
B. INSTRUMENTS ENTITLED TO PROBATE
(i) Wills in Malaysia
[330.326]
Instruments to which probate may be granted
In general, every instrument purporting to be testamentary, or to affect a previous testamentary

instrument, and made by a person over the age of 181, of full capacity and duly executed in accordance
with the formal statutory requirements2, is entitled to probate if it purports to dispose of property, whether
or not the deceased in fact left any property. A writing which merely revokes a former testamentary
disposition without making any disposition of its own ought not to be admitted to probate3. A will which by
its nature, does not comply with the statutory requirements4 will be refused grant of probate by the court,
but the court may grant administration with the will annexed5.
1 See the Age of Majority Act 1971 (Act 21) and [330.255]. See also the Wills Act 1959 (Act 346) s 4 which states that no
will is valid if made by a person under the age of majority.
2 The Wills Act 1959 spells out the testamentary requirements: see Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ
457. As to the requisites for formal validity see [330.028] and following.
3 Re Choo Kim Kiew (decd), Chua Keng Geok v British Malaya Trustee & Executor Co Ltd [1949] MLJ 144; Re Mana
Seena Veeran (decd), Rajoo s/o Magalee Karuppiah v Hussain s/o M S Veeran [1976] 1 MLJ 1, [1975-1977] SLR 372.
4 See Re Ena Mohamed Tamby (decd) [1931] SSLR 3; Re Hajee Mahomed Thaib (1886) 4 Ky 178.
5 As to grant of letters of administration with will annexed see the Probate and Administration Act 1959 (Act 97) ss 16, 29.
[330.327]
Form of instrument immaterial
The form of the instrument to which probate may be granted1 is immaterial. The only requirements are
that: (1) it is intended by the testator to operate after his death2; and (2) it is executed in accordance with
the statutory requirements3.
The principles to be applied in respect of the first requisite differ from those principles to be applied on
the interpretation of wills in a court of construction4. In probate, the whole question is one of intention,
which is the intention to make a will and questions on the intention to revoke the will are completely open
to investigation5. In a court of construction, once the validity of the will has been established, the inquiry
is restricted to the contents of the instrument itself in order to ascertain the testator's intentions. The
intention that the will should operate after death need not appear on the face of the instrument, but may
be proved by extrinsic evidence6. An instrument however irregular in form or artificial in expression, but
which discloses the intention of the maker respecting the posthumous destination of his property, may be
a good testamentary disposition7. Conversely, a document which from its own terms takes effect from its
date and not after the death of the maker, is for all intent and purpose, not considered a will8.
Page 283
1 As to instruments to which probate may be granted see [330.326].
2 The primary characteristic of a will is that it is designed to take effect after the testator's death: see the Wills Act 1959
(Act 346) s 18. See also [330.141].
3 See the Wills Act 1959 on the statutory requirements of wills. See also Khaw Cheng Bok v Khaw Cheng Poon [1998] 3
MLJ 457. As to the requisites for formal validity see [330.028] and following.
4 As to construction by the court see [330.070] and following.
5 See Lim Beng Chye v Sally Leong [1953] MLJ 55, CA ; Re Tan Saw Gan (decd) [1968] 1 MLJ 17; Hsu Yik Chai v Hsu
Yaw Tang [1982] 2 MLJ 227, FC . As to intention to revoke the will see [330.039].
6 Re Hajee Mahomed Thaib (1886) 4 Ky 178, where the document made by the Malay couple was held to be an informal
declaration of trust and not a will as the document referred to the third party as an attorney rather than an executor.
7 Re Ena Mohamed Tamby (decd) [1931] SSLR 3.
8 Re Hajee Mahomed Thaib (1886) 4 Ky 178.
[330.328]
Incorporation of documents
In certain cases, documents referred to in a testator's will1 or codicil2, though not themselves duly
executed3, may be incorporated in the will and included in the probate. Such a document must be strictly
identified with the description contained in the will, but extrinsic evidence is admissible for the purpose of
identification4.
The onus of proving the identity of the document and its existence at the date of the will lies upon the
party seeking to establish it5, but the court will draw inferences from the circumstances surrounding the
execution of the will6.
1 For the meaning of 'will' see [330.001] text to note 5.
2 The definition of 'will' in the Wills Act 1959 (Act 346) s 2(1) includes a codicil. In Re Fatimah bte Mohamed (decd) [1933]
2 MLJ 211 an Arabic document purporting to effect a gift inter vivos of the kind known as 'nasr' was held to be a valid
testamentary document.
3 As to the mode of execution of wills see the Wills Act 1959 s 5 and [330.028] and following. See also Khaw Cheng Bok v
Khaw Cheng Poon [1998] 3 MLJ 457.
4 Re Walter le Cain, Simonides v Brace (1893) 1 SSLR 153 where parol evidence was admissible to show which was the
foot or end of the will as this was an extraordinary case in that the will was written on the back of a cheque.
5 Re Syed Mohamed Alsagoff (decd) [1929] SSLR 99; Estate of Loh Ah Tong, Low Siew Lan v Tan Ah Eng [1949] Supp
MLJ 33.
6 Subramaniam v Rajaratnam [1957] MLJ 11, CA ; Re Fatimah bte Mohamed (decd) [1933] 2 MLJ 211.
[330.329]
Probate of codicils
Where, after probate1 has been granted, a codicil of the will2 is propounded, separate probate may be
granted of the codicil3. Where the codicil expressly or impliedly revokes the appointment of any
executor4 to whom probate has been granted, the probate will be revoked5 and a new probate granted of
the will and codicil together6.
Page 284
3 Probate and Administration Act 1959 (Act 97) s 15. See Re SAA Alsagoff (decd), Syed Zakaria Alsagoff v RD Stewart
[1958] MLJ 264 where a testator died leaving two testamentary dispositions, an English will and an Arabic will dated earlier
than the English will, but which was annexed to and formed part of the English will and the court set aside the judgment
obtained by the trustees of the testator construing the English will as no reference was made to the Arabic will, which was
highly relevant.
6 Probate and Administration Act 1959 s 15 proviso.
[330.330]
Several testamentary instruments
Where two testamentary documents1 are executed2 on different dates, unless the former expressly or by
implication includes the later, only the later testamentary document ought to be admitted to probate3.
For any testamentary document to be treated as part of a will, there must be reference to such document
in the will or sufficient reference to it to identify the particular document, and such document must be in
existence at the time of the making of the will4. Documents that come into existence after the date of the
will, will not be included in the will or revoke the will5.
1 Wills include testamentary documents: see [330.242] note 4.
3 See RC O 71 r 11(3). In Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457, the court pronounced the validity and
force of the earlier will as the circumstances attending the execution of the later will were suspicious even if undue
influence was not proved.
4 In Re SAA Alsagoff (decd), Syed Zakaria Alsagoff v RD Stewart [1958] MLJ 264, a Muslim testator died leaving two
testamentary dispositions, an English will and an Arabic will which was annexed to and formed part of the English will.
Although the trustees of the English will had obtained judgment construing the English will, the trustees of the Arabic will
instituted further proceedings to have the original order set aside on the ground, inter alia that the Arabic will was not
produced before and considered by the learned judge. The court held that the Arabic will which was not produced before
the court was highly relevant, and that the former judgment should be set aside.
SLR 372.
[330.331]
Mutual wills
Wills of two or more persons, for example of husband and wife, made by arrangements between them
and conferring reciprocal benefits but contained in separate instruments, are referred to as mutual wills.
So far as grants of probate or administration are concerned, mutual wills are not the subject of any
special rule1.
Page 285
1 See Mahinder Singh Sidhu The Law of Wills, Probate, Administration and Succession in Malaysia and Singapore (1997)
p 35. In Hiroto Watanabe v Law Yen Yen [2012] 8 MLJ 202, an issue arose as to whether mutual wills existed. The court
said that what is required to prove mutual wills is that: (1) there was a prior agreement by the testators to make mutual
wills intending their agreement to become irrevocable on the death of the first to die; and (2) the making of the mutual will.
It must be established that there was an irrevocable agreement to distribute the estates in a particular way at the time of
the making of the mutual wills. The fact that the wills were executed at the same time and have the same terms is a
relevant consideration but by no means is conclusive. The agreement may be oral or in writing, be incorporated in the will
or proved by extraneous evidence. What is decisive at the end of the day is that there was an agreement by the testators
for the wills to be irrevocable and to remain unaltered a common intention, expectation or desire will not suffice. It may
therefore be insufficient for a husband and wife to merely have corresponding wills or mirror wills as they may carry no
obligation to be irrevocable. In the instant case, it was held that the plaintiff and the deceased executed mutual wills. The
wills were made at the same time and in almost exactly the same terms. The deceased was concerned about her future
and especially that of her children. She was concerned that the plaintiff would leave for Japan and her children, the
defendants, would be deprived of any inheritance. The detailed nature of the will and especially the contents showed that
in the event she predeceased the plaintiff, her two children would be provided for. That was her main concern and that was
why she was happy and relieved when the two wills were signed and executed by the plaintiff. She clearly intended the
wills to be irrevocable. She had also expressly stated to the witnesses to the wills, that there was a promise by both to
never change the wills. There was an agreement between the plaintiff and the deceased that the terms of the wills would
be irrevocable.
[330.332]
Probate of contents of lost will
Where a will1 has been lost or mislaid after the death of the testator, or where a will cannot for any
sufficient reason be produced:
(1) if a copy of or draft of it is produced, and it appears that the copy or draft is identical in
terms with the original, probate2 may be granted of the copy or draft, limited until the
original is admitted to probate3; and
(2) if no copy or draft of it is produced, probate may be granted of the contents of the will, if
they can be sufficiently established, limited until the original is admitted to probate, unless
the will is a privileged will not in writing4.
3 Probate and Administration Act 1959 (Act 97) s 25(a). See Re Goods of Shaik Eman [1871] SLR Leic 278; Re Thomas
Albert Duffy (decd) [1934] MLJ 21.
4 Probate and Administration Act 1959 s 25(b). See RM P RM P V Palaniyappan v NPL ST MV Ramanathan Chettiar
[1977] 2 MLJ 34. As to privileged wills see [330.335] and following; see also [330.035]. 'Under s 25(b), evidence of the
contents of a will may be proved to obtain a limited grant of probate where the original will has been lost or misplaced, and
it cannot be found even after reasonable steps have been taken to search for it. Section 25 may be invoked where the
court is satisfied that the copy or draft of the will produced was identical with the original': Kuan Kim Hock, In Re [2005] 2
CLJ 708 at 711 per Low Hop Bing J . In this case an application by way of ex parte originating summons was filed by the
applicant under the repealed RHC O 71 r 46(1), (2) (note that the ex parte application under RC O 71 r 46(1), (2) is made
by originating summons supported by an affidavit) and the Probate and Administration Act 1959 s 25 for an order that the
will be reconstructed and be accepted as the will of one Foo Tai Moi (the deceased) whose original will could not be found;
and the applicant be at liberty to take out a petition for the grant of probate for the estate of the deceased. In Malaysia, the
standard of proof required to prove the contents of a will is the establishment of a reasonable balance of probability:
Wissler v Wipperman [1955] P 59 at 65, [1953] 1 All ER 764 at 766; Re Yelland, Broadbent v Francis [1975] 119 Sol Jo
562; and not beyond a reasonable doubt, which was the standard applied in Harris v Knight [1890] 15 PD 170 at 179, CA
(Eng), per Lindley LJ , and in Woodward v Goulstone [1886] 11 App Cas 469 at 475, HL, per Lord Herschell LC . In Re
Goods of Shaik Eman [1871] SLR Leic 278, probate of a copy of a lost will was granted where there was sufficient
evidence of the existence of the original will after the death of the testator. See also Kuan Kim Hock, In Re (above).
Page 286
[330.333]
Destroyed will
Where a will1 has been destroyed, otherwise than by the act or with the consent of the testator, probate2
may be granted of a copy or draft of it, or of the contents of it, if they can be sufficiently established3.
3 Probate and Administration Act 1959 (Act 97) s 26. An application to the court by way of notice of application (see
[330.323]) for an order admitting to proof of a nuncupative will, copy, completed draft, reconstruction or evidence of the
contents of a will, must be supported by an affidavit setting out the grounds of the application and evidence as to the due
execution of the will, its existence after the death of the testator and the accuracy of the copy or contents of the will,
together with any written consents to the application by persons not under a disability who would be prejudiced by the
grant: see RC O 71 rr 12, 46. In Wong Fong Yin v Wong Choi Lin [2013] 4 MLJ 82, probate was given in to a copy of a will
where evidence was given by the solicitor who prepared it and his clerk, both of whom who witnessed the signing of the
will. See also Re Wright (1910) 44 ILT 137, 23 Digest (Repl) 90; Re Bentley [1930] IR 445, 23 Digest (Repl) 91 (where the
whole or part of a will is destroyed or made illegible by accidental causes, its contents may be proved by parol testimony);
Gill v Gill [1909] P 157; Re Leigh [1892] P 82 (where a torn will is admitted to probate, the court will not read into the will
any missing words, but when proved, these may be attached in a paper, to the will).
[330.334]
Conflict of law
A will1 executed2 outside Malaysia in the manner required by:
(1) the Wills Act 19593;

(2) the law of the place where it was executed4;
(3) the law of the testator's domicile at the time of the execution; or
(4) the law of the testator's domicile at the time of his death,
is deemed to be a will executed for the purpose of being admitted to probate in Malaysia, provided that
such a will is in writing or is a privileged will made under statutory requirements5.
4 See Meyappa Chetty v Supramaniam Chetty [1916] 1 AC 603, PC ; Re Syed Hussain bin Omar bin Shahab (decd)
[1939] MLJ 69.
5 Ie made under the Wills Act 1959 s 26: s 27. As to privileged wills see [330.335] and following; see also [330.035].
Page 287
Representation/ B. Instruments Entitled to Probate/ (ii) Privileged Wills
(ii) Privileged Wills
[330.335]
Soldiers', sailors' and airmen's wills
The condition that a testamentary instrument cannot be admitted to probate unless it is executed in
accordance with statutory requirements1 does not apply to a soldier in actual military service or to a
mariner or seaman2 being at sea3.
1 As to instruments to which probate may be granted see [330.326]. As to requisites of formal validity see [330.028] and
following.
2 'Seaman' includes a member of the naval forces of Malaysia: see the Wills Act 1959 (Act 346) s 26(1).
3 Wills Act 1959 s 26(1). See also [330.035].
[330.336]
Informal and nuncupative wills
Any form of words, whether written, or spoken by the testator in the presence of a credible witness, will
suffice to constitute a solder's, sailor's or airman's will1, provided that it is made by or at the directions of
the testator which manifests his intentions which he desires to be carried or to the guardianship, custody
and tuition of a child or to the exercise of a power of appointment2.
1 See [330.335]. For the meaning of 'will' see [330.001] text to note 5.
2 Wills Act 1959 (Act 346) s 26(2). See also [330.035].
[330.337]
Proof of soldier's, sailor's or airmen's will
There must be prima facie evidence to satisfy the Registrar that the will1 admitted to proof is a soldier's,
sailor's or airman's will2 and that the same was signed by the testator or, if unsigned, that it is in the
testator's hand-writing3.
2 See [330.335], [330.336].
3 See RC O 71 r 15.
Page 288
Page 289
Representation/ B. Instruments Entitled to Probate/ (iii) Foreigners' Wills
(iii) Foreigners' Wills
[330.338]
Wills of persons dying domiciled abroad
No will1 made in Malaysia according to statutory requirements2 will be held to be revoked3 or to have
become invalid in point of form4 nor will the construction5 of it be altered by reason only of any
subsequent change of domicile of the person making the same6.
Where a person dies domiciled outside Malaysia, and it becomes necessary to prove his will in Malaysia,
it will be admitted to proof if it is established that: (1) the testator was domiciled in the country in
question; (2) either the foreign court has adopted his will as a valid testament or his will is valid by the
law of that country7; and (3) there are assets within the jurisdiction and it is not necessary that it should
be proved in the courts of domicile8.
The devolution of immovable property of a testator is governed by the lex situs9 while the distribution of
his movable property depends on the lex domicilii10.
2 As to instruments to which probate may be granted see [330.326]. As to the requisites for formal validity see [330.028]
and following.
3 As to revocation of wills see [330.037] and following.
4 See [330.327].
6 Wills Act 1959 (Act 346) s 29.
7 Re Syed Hussain bin Omar bin Shahab (decd) [1939] MLJ 69. As to evidence of foreign law see RC O 71 r 16 and
[330.325].
8 Meyappa Chetty v Supramaniam Chetty [1916] 1 AC 603, PC .
9 Sheriffa Fatimah v Syed Allowee (1883) 2 Ky Ecc 31; Ee Hoon Soon v Chin Chay Sam (1889) 1 SLJ 147; Shaik Abdul
Latif v Shaik Elias Bux [1915] 1 FMSLR 204, CA ; Meyammai Achi v Valliammai (unreported, 8 July 1995; originating
summons 659 of 1992) (Sing) .
10 See Shaik Abdul Latif v Shaik Elias Bux [1915] 1 FMSLR 204, CA , where the validity of the will and the distribution of
the property of the deceased, a Mohamedan Indian British subject with domicile of origin in Hong Kong but acquired
domicile in the Federated Malay States was held to be governed by Mohamedan law as administered in the Federated
Malay States and under Mohamedan law, a testator has power to dispose of not more than one-third of his estate and the
residue descends in fixed proportions unless the heirs consent. See also Abdul Jabbar v M Mohamed Abubacker, Re M
Mohamed Haniffa (decd) [1940] MLJ 286.
[330.339]
Grants where deceased died domiciled outside Malaysia

Page 290
Where the deceased died domiciled outside Malaysia, an application may be made to the Registrar for
an order for a grant:
(1) to the person entrusted with the administration of the estate by the court having jurisdiction
at the place where the deceased died domiciled;
(2) to the person entitled to administer the estate by the law of the place where the deceased
died domiciled;
(3) if there is no such person as is mentioned in head (1) or (2) above or if in the opinion of the
Registrar the circumstances so require to such person as the Registrar may direct;
(4) if, by virtue of statutory requirements1, a grant is required to be made to, or if the Registrar
in his discretion considers that a grant should be made to, not less than two
administrators2, to such person as the Registrar may direct jointly with any such person as
is mentioned in head (1) or (2) above or with any other person3.
Without any such application as mentioned above:
(a) probate of any will which is admissible to proof may be granted if the will:
(i) is in the English language, to the executor4 named in it;
(ii) describes the duties of a named person in terms sufficient to constitute him
executor according to the tenor of the will, to that person; and
(b) where the whole of the estate in Malaysia consists of immovable property, a grant limited
thereto may be made in accordance with the law which would have been applicable if the
deceased had died domiciled in Malaysia5.
1 Ie the Probate and Administration Act 1959 (Act 97) s 4.
3 RC O 71 r 25.
[330.340]
Admission to proof of duly authenticated copy of will
When a will1 has been proved and deposited in a court of competent jurisdiction situated beyond the
limits of Malaysia, and a properly authenticated copy of the will is produced, probate2 may be granted of
the copy, or letters of administration3 may be granted with a copy of that copy annexed4.
4 Probate and Administration Act 1959 (Act 97) s 27. See Re Thomas Albert Duffy (decd) [1934] MLJ 21.
Page 291
Representation/ C. Probate in Common Form/ (i) How and By Whom Obtained
C. PROBATE IN COMMON FORM
(i) How and By Whom Obtained
[330.341]
Application for grant by originating summons
Every application for a grant of probate or letters of administration must be made by originating
summons in the prescribed form and supported by an affidavit1 and any other information and/or
documents as the Registrar may require2.
1 Ie in the RC App A Forms 6 and 159: RC O 71 r 5(1).
2 RC O 71 r 5(1). See also O 71 r 4(1). See further [330.344]. As to oaths and affirmations see CIVIL PROCEDURE (2014
Reissue) [190.7-004].
[330.342]
Executor's right to probate
The only person entitled to a grant of probate is the executor1 who may apply for a grant in person2 or
through his solicitor3.
1 As to the appointment of executors see [330.248] and following. Where representation has been granted to more than
one executor and one of them dies, the representation of the estate will accrue to the surviving executors: Probate and
Administration Act 1959 (Act 97) s 14(1).
2 See RC O 71 r 3(1) and [330.343] note 1.
3 See RC O 71 r 3(3)(b). See further [330.344].
[330.343]
Personal application
A personal applicant1 may not apply through an agent, whether paid or unpaid, and may not be attended
by any person acting or appearing to act as his adviser2.
No personal application may be received or proceeded with if:
(1) it becomes necessary to bring the matter before the court by action3;
(2) an application has already been made by a solicitor on behalf of the applicant and has not
been withdrawn4; or
Page 292
(3) the Registrar otherwise directs5.
After a will has been deposited in the Registry by a personal applicant, it may not be delivered to the
applicant or to any other person unless in special circumstances the Registrar directs6.
1 A personal applicant means a person other than a trust corporation who seeks to obtain a grant without employing a
solicitor and 'personal application' has a corresponding meaning: RC O 71 r 2. See also [330.309].
2 RC O 71 r 3(2).
3 RC O 71 r 3(3)(a).
4 RC O 71 r 3(3)(b).
5 RC O 71 r 3(3)(c).
6 RC O 71 r 3(4).
[330.344]
Administrator's oath
Every application for a grant must be supported by an oath1 in the prescribed form2 in which the
applicant affirms that he will faithfully administer the estate and effects of the deceased by paying his
debts so far as the deceased's estate and effects will extend and the law requires, and distributing the
residue of the deceased's estate and effects according to law, and that he will render a just and true
account of his administration when he will be thereto lawfully required3.
1 See [330.341]. The oath is an administration oath; as to administration oaths see RC O 71 r 33. As to oaths and
affirmations see CIVIL PROCEDURE (2014 Reissue) [190.7-004].
2 Ie RC App A Form 161: RC O 71 r 33.
3 See RC App A Form 161.
[330.345]
Contents of originating summons
Every application for a grant must be made by originating summons in the prescribed form and
supported by an affidavit1 and any other information and/or documents as the Registrar may require2.
The affidavit in support must state:
(1) that the whole of the estate and effects of the deceased, movable and immovable, within
the jurisdiction exclusive of what the deceased was possessed of or entitled to as a trustee
for any other person or persons, and not beneficially, but without deducting anything on
account of the debts due or owing from the deceased, does not exceed in value a certain
amount3 to the best of the applicant's knowledge, information and belief4;
(2) whether, and if so, in what manner all persons having a prior right5 to the grant have been
cleared off, and whether any minority or life interest arises under the will or intestacy6;
(3) where the deceased died domiciled7;
(4) the description of any person so named as a lawful relative8 of the deceased, and the law
or custom which alleges the legality of any such relationship9;
Page 293
(5) the relationship of any person who is entitled to share in the distribution of an intestate's
estate and whether he is the only or one of the next-of-kin and by what law or custom so
entitled10;
(6) where the application for the grant is, for the first time, made after a lapse11 of three years
from the death of the deceased, the reason for the delay in making the application12; and
(7) the true name of the deceased where it is necessary to describe the deceased by some
name in addition to his true name13.
1 Ie in one of the forms in RC App A Forms 6 and 159: RC O 71 r 5(1).
2 See RC O 71 r 5(1). See also O 71 r 4(1); Re Azhar Azizan Harun (as the absolute representative of Eleanor Dulcie
Robinson) [1998] 7 MLJ 89, [1999] 2 AMR 1596. See further [330.344]. As to oaths and affirmations see CIVIL PROCEDURE
(2014 Reissue) [190.7-004].
3 Ie RM10,000: RC App A Form 159 para 2.
4 RC App A Form 159 para 2.
5 See Re Wee Guan Ho (decd) [1940] MLJ 212, which held that a person who has no interest in the estate cannot obtain a
grant; Re Mark Johnson (decd) [1950] MLJ 230, where it was held that the Public Trustee is not authorised by statute to
petition for letters of administration; Re Three Petitions for Letters of Administration [1972] 1 MLJ 244 which held that the
next-of-kin or surviving spouse is preferred to the Public Trustee by the court as the person entitled to obtain the grant of
letters of administration unless there is cause shown to the contrary.
6 RC O 71 r 5(2).
7 RC O 71 r 5(3). See also the Probate and Administration Act 1959 (Act 97) s 52. See Re Eu Keng Chee (decd), Chan
Pek Yuk v Commissioner of Estate Duties [1961] MLJ 210 which held that where it is alleged that the deceased had
changed his domicile, it must be proved with perfect clearness that the deceased had at the time of his death, formed a
'fixed and settled purpose', 'a determination', 'a final and deliberate intention' to abandon his existing domicile; Re
Bhagwan Singh (decd) [1964] MLJ 360 which held that the domicile of a person is that country in which he either has or is
deemed by law to have his permanent home; Majumder v Attorney-General of Sarawak [1966] 1 MLJ 41 which held that
'domicile' and 'residence' are not synonymous; Ong Ah Goh v Kuan Keh Lan [1968] 2 MLJ 57; Melvin Lee Campbell v Amy
Anak Edward Sumek [1988] 2 MLJ 338; Re Azhar Azizan Harun [1999] 2 AMR 1596.
8 Tan Eng Lok v The Estate of Tan Kim Tiong [1999] 6 MLJ 193 where the legatee not being the legitimate daughter of the
deceased was not denied her right to inherit the land.
9 RC O 71 r 5(5)(a). See Chua Kim Suan v Ang Mek Chong [1988] 3 MLJ 231 where the plaintiff failed to establish that the
son was not the lawful son of the deceased; Goh Liew Kee @ Goh Ah Nya v C Moosa bin Haji Abdullah [1993] 1 AMR 215
where it was held that the applicant was the lawful widow, relict and sole next-of-kin of the deceased and that she was
entitled to succeed to the whole of the estate of the deceased; Shamugam v Pappah [1994] 1 MLJ 144 where the plaintiff
failed to establish that he was the legitimate son of the deceased and the defendant failed to prove that she was the lawful
wife and relict of the deceased and that her three children were the children of her marriage to the deceased.
10 RC O 71 r 5(5)(b).
11 An executor is not divested of his responsibilities by lapse of time: Teh Seow Teng v Yap Tai Chi [1912] 1 FMSLR 92,
CA .
12 RC O 71 r 5(6). As to cancellation of probate see Re Ena Mohamed Tamby (decd), Oomah Meida binte Hajee v Moona
Jana Shaik Allaudin [1932] MLJ 128; as to delay in instituting proceedings see Poh Ah Choo v Tan Siew Gim [1986] 1 MLJ
337.
13 See RC O 71 r 6.
[330.346]
Applications in respect of nuncupative of copies of wills
An application for an order admitting to proof a nuncupative will1, or a will contained in a copy, a
completed draft, a reconstruction or other evidence or its contents where the original will is not available
Page 294
may be made to the court by originating summons2. In the event a will is not available owing to its being
retained in the custody of a foreign court or official, a duly authenticated copy of the will may be admitted
to proof as permitted by law3 without any such order as aforesaid4.
Such an application must be supported by affidavit setting out the grounds of the application and by such
evidence on affidavit5 as the applicant can adduce as to:
(1) the due execution of the will6;

(2) its existence after the death of the testator; and
(3) the accuracy of the copy of other evidence of the contents of the will,
together with any consents in writing to the application given by any persons not under disability who
would be prejudiced by the grant7.
1 As to informal and nuncupative wills see [330.336].
2 RC O 71 r 46(1). As to notice of application see [330.323].
3 Ie the Probate and Administration Act 1959 (Act 97) s 27.
6 As to proof of due execution see [330.347].
7 RC O 71 r 46(2).
[330.347]
Proof of due execution
Notwithstanding that the will is perfect on the face of it and that there is an attestation clause showing
that the statutory requirements1 have been complied with, the Registrar still requires an affidavit as to the
due execution from one or more of the attesting witnesses2.
Where a will contains no attestation clause3 or the attestation clause is insufficient or where it appears to
the Registrar that there is some doubt about the due execution of the will, he must, before admitting it to
proof, require an affidavit as to due execution from one or more of the attesting witnesses4 or, if no
attesting witness is conveniently available, from any other person who was present at the time the will
was executed5.
If no affidavit can be obtained, the Registrar may, if he thinks fit having regard to the desirability of
protecting the interest of any person who may be prejudiced by the will, accept evidence on affidavit6
from any person he may think fit to show that the signature on the will is in the handwriting of the
deceased7, or of any other matter which may raise a presumption in favour of the execution of the will8.
If, after considering the evidence, the Registrar is satisfied that the will was not duly executed he must
refuse probate9. If he is doubtful, he may refer the matter to the court10. However, if any person who
attests the execution of a will, is at the time of the execution of the will or at any time afterwards
incompetent to be admitted a witness to prove the execution of the will, such will is not on that account
invalid11.
1 See the Wills Act 1959 (Act 346) s 5 and [330.028] and following. See also Khaw Cheng Bok v Khaw Cheng Poon [1998]
3 MLJ 457.
2 In practice if one of the attesting witnesses is a solicitor, then only the solicitor's affidavit is required; if the two attesting
witnesses are not solicitors then both their affidavits are required. See Practice Note No 9 of 1946.
Page 295
3 As to attestation see [330.031] and following.
4 Dr K Shanmuganathan (suing by his attorney Dr A Puraviappan) v Periasamy s/o Sithambaram Pillai [1994] 2 CLJ 225
where the court accepted the evidence of the three eyewitnesses to the due execution of the will and further held that two
witnesses to the will need not sign simultaneously in the presence of each other and the presence of the testator.
5 RC O 71 r 9(1).
7 R Mahendran v R Arumuganathan [1999] 2 SLR 579.
8 RC O 71 r 9(2). As to the presumption of due execution see [330.033].
9 RC O 71 r 9(3)(a).
10 RC O 71 r 9(3)(b).
11 Wills Act 1959 s 8. For the meaning of 'will' see [330.001] text to note 5.
[330.348]
Wills of blind or illiterate testators
Before admitting to proof a will which appears to have been signed by a blind or illiterate testator or by
another person by direction of the testator, or which for any other reason gives rise to doubt as to the
testator having had knowledge1 of the contents of the will at the time of its execution2, the Registrar must
satisfy himself that the testator had such knowledge3.
1 As to want of knowledge or approval see [330.011].
3 RC O 71 r 10.
[330.349]
Obliterations, interlineations and alterations
Where there appears in a will any obliteration, interlineation or other alteration which is not authenticated
in the manner prescribed by statute1, or by re-execution of the will or by execution2 of a codicil, the
Registrar will require evidence to show whether the alteration was present at the time the will was
executed and will give directions as to the form in which the will is to be proved3, except where the
alteration appears to the Registrar to be of no practical importance4.
1 Ie by the Wills Act 1959 (Act 346) s 15. See Re Choo Kim Kiew (decd), Chua Keng Geok v British Malaya Trustee &
Executor Co Ltd [1949] MLJ 144 where the testatrix had not rendered illegible the words no longer desired by her and had
not signed her deletions in the will, the will was admitted to probate retaining the smudged but still legible words.
2 As to due execution required for alterations and erasures see [330.036].
3 RC O 71 r 11(1).
Page 296
[330.350]
Documents attached to or incorporated in will
If from any mark on a will it appears to the Registrar that some other document has been attached to the
will, or if a will refers to another document in such terms as to suggest that it ought to be incorporated in
the will, he may require the documents to be produced and may call for such evidence in regard to the
attaching or incorporation as he thinks fit1.
Where marks appear on the face of a document propounded as a testamentary document2, the onus lies
on the person propounding the document to explain such marks3.
1 RC O 71 r 11(2). As to the incorporation of documents see [330.328].
2 As to instruments to which probate may be granted see [330.326].
3 Re Syed Mohamed Alsagoff (decd) [1929] SSLR 99.
[330.351]
Doubts as to date or revocation of will
Where there is doubt as to the date on which a will was executed1, the Registrar may require such
evidence as he thinks necessary to establish the date2.
Any appearances of attempted revocation of a will by burning, tearing or otherwise, and every other
circumstances leading to a presumption of revocation3 must be accounted for to the Registrar's
satisfaction4.
2 RC O 71 r 11(3).
SLR 372 which held that mere intention or attempt of a testator to revoke his will is not sufficient to produce revocation as
laid down by the law. As to revocation of wills see [330.037] and following.
4 RC O 71 r 12.
[330.352]
Marking of wills
An application for a grant must be accompanied with a certified true copy of the will1 and where the
Registrar considers that in any particular case, a photographic copy of the original will would not be
satisfactory for purposes of record, he may require an engrossment suitable for photographic
reproduction to be filed2. Where the will is not in the English language3, there must be annexed to the
application a translation certified a court interpreter4 or a translation verified by the affidavit of a person
qualified to translate the will5.
1 RC O 71 r 7(1). In practice, the Registrar always requires the original will to be annexed with the originating summons
notwithstanding that a certified true copy of the will is required to be annexed to the originating summons under this
Page 297
provision. See In the Matter of the estate of Chen Ngow @ Chen Seong Chin, deceased [2011] 6 MLJ 737.
2 RC O 71 r 8(1).
3 In Re Abdullah (1835) 2 Ky Ecc 8, it was held that any person may, if he so desires, direct in his will that his property will
devolve according to his own personal law and that the court will be bound to ascertain that law and apply it for him.
4 In Lim Mah Yong v JA Anthony (1878) 1 Ky 454 it was held that where a will is in a foreign language, the court is not
bound by the translation which is attached to the probate, but may look at the true translation and will go into evidence to
ascertain what is the true translation in the event there is a suit to declare the translation done by the court interpreter is
incorrect.
5 RC O 71 r 7(2).
[330.353]
Order to bring in will
The court1 may, on the application of any person interested2, if it appears that there is reason to believe
that any will3 or other testamentary document of a deceased person is in the possession or under the
control of any person, or that any person has knowledge of the existence of such a will or document,
order that the person do, within a time named produce the will or document at the Registry, or attend at a
time named before a court, for the purpose of being examined in relation to that document4.
2 Such application must be made to a judge by notice of application and must be served on the person required to bring in
the will or attend for examination: RC O 71 r 45. As to notice of application see [330.323].
4 Probate and Administration Act 1959 (Act 97) s 41. In Tan Thian Wah v Tan Tian Tiok [1998] 2 CLJ Supp 300, the
application under the Probate and Administration Act 1959 s 41 was rejected as there was no legal impediment as to why
the applicant could not have requested the trustees or executors of the estate for a copy of the will, or request them to
permit their solicitors to release a copy of the will. See also Lau Siang Kok, Lionel v Lau Chon Kun @ Lau Yu Chak, Datuk
Seri Panglima [2013] 2 MLJ 889, CA ; Lau Siang Kok, Lionel v Lau Cho Kun @ Lau Yu Chak, Datuk Seri Panglima[2014]
11 MLJ 411.
[330.354]
Time for issuing grant
Except with the leave of the Registrar, no grant of probate or of administration with the will annexed may
issue within seven days of the death of the deceased and no grant of administration may issue within 14
days of the death of the deceased1. The Registrar must not allow any grant to issue until all inquiries
which he may see fit to make have been answered to his satisfaction2.
1 RC O 71 r 4(3).
2 RC O 71 r 4(1).
[330.355]
Page 298
Proof of death
The originating summons for a grant must specify the date of death and a certificate of death of the
deceased1 is acceptable as sufficient evidence of death2 or such other evidence of the death as the
Registrar may approve3.
The Registrar may require proof of the identity of the deceased or of the applicant for the grant beyond
that contained in the originating summons4.
1 In practice a certified copy of the death certificate issued by the Registrar of Births and Deaths is required to be
submitted with the originating summons to the court.
2 Tan Eng Lok v The Estate of Tan Kim Tiong [1999] 6 MLJ 193, where failure to prove death resulted in the court
pronouncing the suit as misconceived and untenable.
3 See RC O 71 r 3(5).
4 RC O 71 r 4(2).
[330.356]
Presumption of survivorship
In all cases where two or more persons die in circumstances rendering it uncertain which of them
survived the other or others, such deaths will (subject to any order of the court) for all purposes affecting
the title to property be presumed to have occurred in order of seniority and accordingly the younger will
be deemed to have survived the elder1. The statutory presumption can, however be excluded by an
express provision in a will2. The onus of proving death as in the case of a legatee entitled under a will
who has not been heard of since the date of the will, lies upon those who claim under the legatee that he
had survived the testator3.
1 Presumption of Survivorship Act 1950 (Act 205) s 2.
2 Re Lee Chew Kuen (decd) [1968] 1 MLJ 112, [1965-68] SLR 703.
3 Ee Hoon Soon v Chin Chay Sam (1889) 1 SLJ 147.
[330.357]
Presumption of death
When the question is whether a man is alive or dead and it is shown that he was alive within 30 years,
the burden of proving that he is dead is on the person who affirms it1.
When the question is whether a man is alive or dead, and it is proved that he has not been heard of for
seven years by those who would naturally have heard of him if he had been alive, the burden of proving
that he is alive is shifted to the person who affirms it2.
Where the fact of death is not in doubt, and the applicant can swear3 that death had occurred, no order
is required of any application for probate or grant of letters of administration to swear that death had
taken place4.
Previously, on an ordinary petition for letters of administration where the death of the intestate is put in
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issue, the court can presume that the death took place on or after a given date5.
1 Evidence Act 1950 (Act 56) s 107. The plaintiff should make out an arguable case on a balance of probabilities: see
Saminathan v Pappa [1981] 1 MLJ 121, PC ; Eastern & Oriental Hotel (1951) Sdn Bhd v Ellarious George Fernandez
[1989] 1 MLJ 35, SC . See also Practice Note No 7 of 1946.
2 Evidence Act 1950 s 108.
4 Re Karupaya (decd) [1962] MLJ 128. See Re Mehah binti Muhamed [1972] 1 MLJ 212, which held that even if the court
is fairly certain that the persons mentioned in an application are dead the application to court should be made by those
who would most likely be the ones to hear from them if they were alive.
5 See Re A Penhas (decd) [1947] MLJ 78.

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Representation/ C. Probate in Common Form/ (ii) Limited Probates
(ii) Limited Probates
[330.358]
General and limited grants
In a simple case, the executors1 obtain a general grant2 to the whole of the testator's estate; they are his
personal representatives3 and are charged with the administration of his property.
In some cases, the testator may appoint special executors to administer certain specified property of his
estate4.
2 This is equally the case where there is a single executor.
4 As to special executors see [330.244].
[330.359]
Types of limited grants
Where a testator appoints a separate executor1 for the purpose of carrying into effect the trusts and
dispositions of a codicil2, probate limited to those trusts and dispositions is granted to that executor3. A
similar grant is made to a person who is appointed executor for a special purpose or in respect of a
specific fund only4.
1 As to the classification of executors see [330.244]; as to the appointment of executors see [330.248] and following.
2 As to probate of codicils see [330.329].
3 Re Thomas Albert Duffy (decd) [1934] MLJ 21.
4 Lily Iskandar v Bonardy Leo [1986] 1 MLJ 368, CA (Sing) .
[330.360]
Grant limited to time
Where a will1 has been lost or mislaid after the death of the testator, or where a will cannot for any
sufficient reason be produced, if a copy or draft of the will is produced and it appears that the copy or
draft is identical in terms with the original, probate may be granted of the copy or draft, limited until the
original will is admitted to probate2. If no copy or draft of the will is produced, probate may be granted of
Page 301
the contents of the will, if they can be sufficiently established, limited until the original will is admitted to
probate, unless the will is a privileged will not in writing3.
2 Probate and Administration Act 1959 (Act 97) s 25(a). See also [330.332]. For the meaning of 'probate' see [330.244]
note 7.
3 Probate and Administration Act 1959 s 25(b). As to privileged wills see [330.335] and following; see also [330.035].
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Representation/ C. Probate in Common Form/ (iii) Double and Cessate Grants
(iii) Double and Cessate Grants
[330.361]
Double grants
Where by reason of their number1 or otherwise the executors2 appointed by the will do not all prove,
power may be reserved to the non-proving executors to prove at a later date3. The second grant will then
be known as double probate. It is made in general terms, but the value of the estate is sworn4 as the
value of the assets remaining unadministered at the date of the second grant and not as the original
value in the first grant.
1 Representation (see [330.256] note 1) will not be granted to more than four persons in respect of the same property:
Probate and Administration Act 1959 (Act 97) s 4(1); see also [330.249]. For the meaning of 'property' see [330.242] note
7.
2 For the meaning of 'executor' see [330.243]. As to the appointment of executors see [330.248] and following.
3 Subject to the restriction that representation will not be granted to more than four persons in regard to the same property
(see note 1 above), where several executors are appointed probate may be granted to them all simultaneously or at
different times: Probate and Administration Act 1959 s 3(3). As to proving see [330.299].
[330.362]
Cessate or second grants
Where the person to whom a grant would otherwise be made is an infant1, administration for his use and
benefit until he attains the age of majority2 will, be granted:
(1) to both parents of the infant jointly or to the statutory or testamentary guardian of the infant
or to any guardian appointed by a court of competent jurisdiction3; or
(2) if there is no such guardian able and willing to act and the infant has attained the age of 16
years, to the next-of-kin nominated by the infant or where the infant is a married woman, to
any such next-of-kin or to her husband if nominated by her4.
Where an infant who is the sole executor5 has no interest in the residuary estate of the deceased,
administration for the use and benefit of the infant until he attains the age of 21 years will, unless the
Registrar otherwise directs, be granted to the person entitled to the residuary estate6.
A second grant is also required upon the death of a person who has taken a grant for the use and benefit
of a person under mental or physical incapacity7, and a cessate grant is made on the recovery of such
mental or physical incapacity, as where a minor attains full age8.
Where a grant has been made of the contents of a lost will9, a second grant is made upon the production
of the original. Where a codicil is found after probate of the will, a second grant is sometimes made10.
Page 303
2 See [330.255] note 2.
3 RC O 71 r 27(1)(a).
4 RC O 71 r 27(1)(b). Any person nominated under this provision may represent any other infant whose next-of-kin he is,
being an infant below the age of 16 years entitled in the same degree as the infant who made the nomination: O 71 r
27(2).
6 RC O 71 r 27(5).
7 See the Probate and Administration Act 1959 s 21 and [330.256].
8 As to grants in cases of mental or physical incapacity see RC O 71 r 29.
[330.363]
Calling for account from holder of original grant
A person who obtains a cessate grant1 or a grant on the revocation of a previous grant2 may call upon
the person in whose favour the original grant was made at any time after the determination of the original
grant to exhibit an inventory3 and account4.
1 As to cessate grants see [330.362].
2 As to revocation of grants see [330.300] and following.
3 As to the duty to exhibit inventories see the Probate and Administration Act 1959 (Act 97) s 62.
4 As to the duty to keep accounts see [330.727].

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Representation/ D. Probate in Solemn Form/ (i) When Proof in Solemn Form is Necessary
D. PROBATE IN SOLEMN FORM
(i) When Proof in Solemn Form is Necessary
[330.364]
Proof in solemn form
If there is any doubt as to the validity of a will1 or any apprehension that there may be opposition to it, it
is open to the executor2, or if there is no executor the person entitled to administration with the will
annexed, to prove it in solemn form, that is by way of a probate action3 making the persons interested in
opposing the will, whether under another will or on intestacy, defendants4.
For the purpose of contentious probate proceedings, a probate action is an action for the grant of
probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of
such grant5 or for a decree pronouncing for or against the validity of an alleged will, not being an action
which is non-contentious6.
3 See Tong Lee Hwa v Chin Ah Kwi Tong Chong Fah v Chin Ah Kwi, [1971] 2 MLJ 75, FC , where a probate action arose
from the existence of three or four wills.
4 As to contentious probate proceedings see RC O 72.
6 RC O 72 r 1(2). Probate actions, whether contentious or non-contentious, should comply with Ords 71, 72: see
Sivanendran s/o V Markandoo v Dr Mahendran a/l V Markandoo [1988] 2 MLJ 169, SC ; Tong Lee Hwa v Chin Ah Kwi
Tong Chong Fah v Chin Ah Kwi, [1971] 2 MLJ 75, FC . See also Neoh Ah Yan v Ong Leng Choo [2008] 7 MLJ 151.
[330.365]
When an executor need not prove
An executor1 is not obliged to propound a will2, as he may, if gross misconduct occurs, not be entitled to
the full costs of the suit brought by him out of the estate funds. If he has not intermeddled with the
estate3, he may renounce probate4, or he may fail to appear to a citation5 to propound the will, and if it is
pronounced for in solemn form may still accept probate6.
2 As to citation to propound a will see [330.321].
3 As to executors de son tort see [330.269] and following.
4 As to the power to renounce see [330.262].

Page 305
6 If however, he failed to appear to a citation to take out probate, his rights in respect of the executorship would wholly
cease: see [330.319].
[330.366]
Persons entitled to call for proof in solemn form
Any person entitled on intestacy is entitled to call for proof in solemn form1, whether or not probate has
been granted in common form2; and so may a legatee, devisee or beneficiary whose legacy, devise or
gift has been omitted from the probate, and an executor3, legatee, devisee or beneficiary named in any
other testamentary instrument of the deceased whose interest is adversely affected by the will in
question4.
In the case where probate has been granted in common form, the person concerned to compel proof in
solemn form must proceed for revocation of the grant5 unless the executors themselves decide to
propound the will in solemn form6.
1 As to proof in solemn form see [330.364]. As to intestate succession see [330.645] and following.
2 As to probate in common form see [330.341] and following.
4 See Fatimah Bee @ Batcha Ammal v Mohideen Batcha [1946] MLJ 112, CA .
6 See Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457.
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Representation/ D. Probate in Solemn Form/ (ii) High Court Procedure
(ii) High Court Procedure
[330.367]
Writ of summons
An action to obtain probate in solemn form1 must be begun by the issue of a writ of summons2, indorsed
with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the
deceased to which the action relates3. Such writ must be issued out of the Registry of the High Court4. A
writ beginning an action for the revocation5 of the grant of probate of the will, or letters of administration
of the estate, of a deceased person will not be issued unless the plaintiff has applied for a citation6
against the person to whom the probate or letters of administration, as the case may be, was or were
granted requiring such person to bring into and leave at the Registry the probate or letters of
administration7, and such citation has been issued or the probate or letters of administration, as the case
may be, has or have been lodged in the Registry8.
Service out of the jurisdiction9 of a notice of a writ, by which a probate action is begun is permissible with
the leave of the court10.
1 As to proof in solemn form see [330.364].
2 RC O 72 r 2(1). As to notice of application see [330.323]. A probate action under O 72 r 2(1) must be begun by writ and
the writ must be issued out of the Registry: see Priyakumary Muthucumaru v Gunasingam a/l Ramasingam (a bankrupt)
[2006] 6 MLJ 511, CA ; Debaroti Das Gupta v Deb Brata Das Gupta [2015] 7 MLJ 605.
3 RC O 72 r 2(2). See Sarjit Singh a/l Kesar Singh v Harjindar Kaur a/p Koondan Singh [2016] 12 MLJ 27, CA ; Chenna
Gounder a/l Kandasamy v Angamah a/p Sunappan [2017] 10 MLJ 387.
4 RC O 72 r 2(1).
6 As to the purpose of a citation see [330.316].
7 As to the citation to bring in grant see RC O 72 r 7 and [330.322]. Under RC O 72 r 7, an application for a citation may be
made ex parte, upon the court being satisfied of the statements of the citors made on affidavit. The right of the citee to be
heard would therefore be safeguarded at the time when the writ action is litigated: see Yap Teck Ngian v Yap Hong Lang
@ Yap Fong Mei [2006] 6 MLJ 607, CA .
8 RC O 72 r 2(3). This was followed by the issue of an originating motion under the repealed RHC 1980: see Re Tay Tuan
(decd) [1962] MLJ 285.
9 As to service out of the jurisdiction see generally CIVIL PROCEDURE (2014 Reissue) [190.2-063] and following.
10 RC O 72 r 3(1). As to the application for the grant of leave see O 72 r 3(2); see also O 11 rr 3, 4. As to what is a
probate action see [330.364].
[330.368]
Statement of claim
Page 307
Unless the court gives leave to the contrary or unless a statement of claim is indorsed on the writ, the
plaintiff in a probate action1 must serve a statement of claim on every defendant who enters an
appearance in the action, and must do so before the expiration of six weeks after entry of appearance by
that defendant or of eight days after filing by him of an affidavit of testamentary scripts2, whichever is the
later3.
Where the plaintiff disputes the defendant's interest, he must allege in his statement of claim that he
denies the interest of that defendant4.
1 As to what is a probate action see [330.364].
2 'Testamentary script' means a will or draft of the will, written instructions for a will made by or at the request or under the
instructions of the testator and any document purporting to be evidence of the contents, or to be a copy, of a will which is
alleged to have been lost or destroyed: RC O 72 r 9(5). See also [330.375].
3 RC O 72 r 11.
4 RC O 72 r 13(1). See also [330.370].
[330.369]
Counterclaim and reply
Notwithstanding any claim of a defendant to any relief or remedy against a plaintiff in the action in
respect of any matter1, a defendant to a probate action2 who alleges that he has any claim or is entitled
to any relief or remedy in respect of any matter relating to the grant of probate of the will, or letters of
administration of the estate, of the deceased person which is the subject of the action must add to his
defence a counterclaim in respect of that matter3.
1 See RC O 15 r 2(1).
3 RC O 72 r 12. See Chenna Gounder a/l Kandasamy v Angamah a/p Sunappan [2017] 10 MLJ 387.
[330.370]
Contents of pleadings
Where the plaintiff in a probate action1 disputes the interest of a defendant he must allege in his
statement of claim that he denies the interest of that defendant2. In a probate action in which the interest
by virtue of which a party claims to be entitled to a grant of letters of administration is disputed, the party
disputing that interest must show in his pleading3 that if the allegations made in the pleading are proved
he would be entitled to an interest in the estate4.
2 RC O 72 r 13(1). See also [330.368].
3 As to the system of pleading see CIVIL PROCEDURE (2014 Reissue) [190.3-124] and following.
4 RC O 72 r 13(2). A grant of letters of administration cannot be made to a petitioner (now referred to as an 'applicant')
who has no interest in the estate: see Re Wee Guan Ho (decd) [1940] MLJ 212.
Page 308
[330.371]
Default of pleadings
The rules which apply to default of pleadings in the High Court1 do not apply to a probate action2. Where
any party to a probate action fails to serve3 on any other party a pleading which he is required to serve
on that other party, then unless the court orders the action to be discontinued, that other party may, after
the expiration of the period fixed by or under the rules4 for service of the pleading in question5, apply to
the court for leave to set down the action for trial6.
1 Ie RC O 19. As to default of pleadings see CIVIL PROCEDURE (2014 Reissue) [190.3-181]. As to the system of pleading
see CIVIL PROCEDURE (2014 Reissue) [190.3-124] and following.
2 RC O 72 r 14(1). As to what is a probate action see [330.364].
3 Ng Moo Yin v Ng Chee Kong [1982] 2 MLJ 42 where an original order made pursuant to an ex parte application by the
trustees of the estate was set aside on the ground that no notice was given to all the other beneficiaries who had a right to
be heard on the application.
4 Ie the Rules of Court 2012 (PU (A) 205/2012).
5 As to service of pleadings and time for service of pleadings see CIVIL PROCEDURE (2014 Reissue) [190.3-179],
[190.3-180].
6 RC O 72 r 14(2). As to setting down for trial see CIVIL PROCEDURE (2014 Reissue) [190.8-013] and following.
[330.372]
Orders and directions for just, expeditious and economical disposal of proceedings
The court may, at any time after the commencement of proceedings, of its own motion, direct any party
or parties to the proceedings to appear before the court, in order that the court may make such order or
give such direction as it thinks fit so that all matters which must or can be dealt with on interlocutory
applications and have not already been dealt with are so far as possible dealt with1; and such directions
are given as to the future course of the action as appear best adapted to secure its just, expeditious and
economical disposal2.
Apart from the requirement by the plaintiff and every defendant who has entered an appearance in a
probate action3, to file in an affidavit of testamentary scripts4, the procedure for pre-trial case
management5 in a probate action is no different from that in other actions.
A judgment or order given in proceedings where numerous persons have the same interest in any
proceedings6, not being such proceedings concerning representation of interested persons who cannot
be ascertained7, will be binding on all persons as representing whom the plaintiffs sue or, as the case
may be, the defendants are sued, but will not be enforced against any person not a party to the
proceedings except with the leave of the court8.
1 RC O 34 r 1(1)(a).
2 RC O 34 r 1(1)(b).
4 See RC O 72 r 9(1). As what is a testamentary script see [330.368] note 2.
5 See RC O 34.
Page 309
6 Ie representative proceedings: see RC O 15 r 12. See also CIVIL PROCEDURE (2014 Reissue) [190.3-019] and following.
7 As to such proceedings see RC O 15 r 13.
8 RC O 15 r 12(3).
[330.373]
Interrogatories
The procedure as to interrogatories1 in probate matters is no different from that in other forms of
litigation.
1 See RC O 26. See also CIVIL PROCEDURE (2014 Reissue) [190.3-342] and following.
[330.374]
Inspection
Except with the leave of the court, a party to a probate action1 is not allowed to inspect an affidavit of
testamentary script2 filed into court by any other party to the action, or any testamentary script annexed
to the affidavit, unless and until an affidavit sworn3 by him containing the information as required of him4,
has been filed5.
2 As to what is a testamentary script see [330.368] note 2. See also [330.375].
4 As to what information see RC O 72 r 9(1) and [330.375].
5 RC O 72 r 9(4).
[330.375]
Testamentary scripts
A testamentary script is a will or draft of the will, written instructions for a will made by or at the request or
under the instructions of the testator and any document purporting to be evidence of the contents or to
be a copy, of a will which is alleged to have been lost or destroyed1. The originals of all such scripts must
be lodged with the Registrar2 and where the script or any part of the script is written in pencil, then,
unless the court otherwise directs, a facsimile copy of that script, or of the page or pages of the script
containing the part written in pencil, must also be filed and the words which appear in pencil in the
original must be underlined in red ink in the copy3.
Unless the court otherwise directs the plaintiff and every defendant who has entered an appearance in a
probate action4 must swear an affidavit: (1) describing any testamentary script of the deceased person,
whose estate is the subject of the action, of which he has any knowledge or, if such be the case, stating
that he knows of no such script5; and (2) if any such script of which he has knowledge is not in his
Page 310
possession or under his control, giving the name and address of the person in whose possession or
under whose control it is, or, if such be the case, stating that he does not know the name or address of
that person; and any such script which is in the possession or under the control of the deponent must be
annexed to his affidavit6.
1 RC O 72 r 9(5).
2 See RC O 71 r 46.
3 RC O 72 r 9(3).
5 RC O 72 r 9(1)(a).
6 RC O 72 r 9(1)(b). An affidavit of testamentary scripts (together with any testamentary script) must be filed within 14 days
after the entry of appearance by a defendant to the action or, if no defendant enters an appearance and the court does not
otherwise direct, before the action is set down for trial: O 72 r 9(2).
[330.376]
Intervener in probate action
A person who is not a party to a probate action1 may apply to the court for leave to intervene2 in a
probate action3 by way of notice of application supported by an affidavit showing the interest of the
applicant in the estate of the deceased4. Unless the intervener enters an appearance, he is not entitled
to be heard in the probate action5.
2 See United Asian Bank Bhd v Personal Representative of Roshammah (decd) [1994] 3 MLJ 327.
3 RC O 72 r 4(1).
5 RC O 72 r 4(3).
[330.377]
Default of appearance
The rules which apply to default of appearance in the High Court1 do not apply to a probate action2.
Where any of several defendants to a probate action fails to enter an appearance, upon filing an affidavit
proving due service of the writ, or notice of the writ, on that defendant, the plaintiff may, after the time
limited for appearing, proceed with the action as if that defendant had entered an appearance3. Where
the defendant, or all the defendants, fails or fail to enter an appearance, and none of the persons (if any)
cited to see proceedings4 has entered an appearance, then, unless on the plaintiff's application the court
orders the action to be discontinued5, the plaintiff may after the time limited for appearing by the
defendant, apply to the court for leave to set down the action for trial6. Before making such an application
the plaintiff must file an affidavit proving due service of the writ or notice of the writ on the defendant and
of the citation if any7. Where the court grants order for trial, it may direct the action to be tried on affidavit
evidence8.
Where whether before or after service of the defence in a probate action the parties to the action agree
Page 311
to a compromise9, the action may, with the leave of the court, be set down for trial10.
1 Ie RC O 13.
3 RC O 72 r 10(2).
4 See RC O 72 r 5 and [330.322].
5 As to discontinuance of probate action see [330.379].
6 RC O 72 r 10(3). As to setting down for trial see CIVIL PROCEDURE (2014 Reissue) [190.8-013] and following.
7 RC O 72 r 10(4).
8 See RC O 72 r 10(5). As to affidavit evidence see CIVIL PROCEDURE (2014 Reissue) [190.7-003].
9 See [330.378].
10 RC O 72 r 16.
[330.378]
Compromise of action
Where whether before or after service of the defence in a probate action1, the parties to the action agree
to a compromise, the action may, with leave of the court, be set down for trial2.
2 RC O 72 r 16. As to setting down for trial see CIVIL PROCEDURE (2014 Reissue) [190.8-013] and following.
[330.379]
Discontinuance of probate action
The rules which apply to discontinuance of action in the High Court1 do not apply to a probate action2. At
any stage of the proceedings in a probate action, the court may, on the application of the plaintiff or of
any party to the action who has entered an appearance in the action, order the action to be discontinued
on such terms as to costs3 or otherwise as it thinks just, and may further order that a grant of probate of
the will, or letters of administration of the estate, of the deceased person, as the case may be, which is
the subject of the action be made to the person entitled to such grant4. The application may be made by
notice of application5.
1 Ie RC O 21. As to discontinuance of action see CIVIL PROCEDURE (2014 Reissue) [190.3-221], [190.3-222].
3 Ordinarily costs should follow the event. As to costs to follow the event see RC O 59 r 3.
4 RC O 72 r 15(2).

Page 312
Representation/ D. Probate in Solemn Form/ (iii) Grounds for Opposing Probate
(iii) Grounds for Opposing Probate
[330.380]
Defences available
Without prejudice to the rule that facts and not evidence are be pleaded1, any party, who pleads that at
the time when a will, the subject of the action, was alleged to have been executed the testator did not
know and approve of its contents2, must specify the nature of the case on which he intends to rely, and
no allegation in support of that plea which would be relevant in support of any of the following other
pleas, that is to say: (1) that the will was not duly executed3; (2) that at the time of the execution of the
will, the testator was not of sound mind4, memory and understanding5; and (3) that the execution of the
will was obtained by undue influence6 or fraud7, will be made by that party unless that other plea is also
pleaded8.
1 Ie RC O 18 r 7. See CIVIL PROCEDURE (2014 Reissue) [190.3-134] and following.
2 As to want of knowledge and approval see [330.011] and Tho Yow Pew v Chua Kooi Hean [2001] 5 MLJ 578.
3 See Re Ee Tiang Lok (1947) SCR 1, where the plaintiffs sought proof of a will in solemn form and the court held that the
formalities of execution of a will are governed in the absence of any Sarawak Ordinance, by English law. As to the
requisites for formal validity see [330.028] and following.
4 R Mahendran v R Arumuganathan [1999] 2 SLR 579, CA (Sing) , where the Court of Appeal of Singapore held that the
deceased understood and approved of the contents of the will before she executed it. See also Gan Yook Chin v Lee Ing
Chin @ Lee Teck Seng [2001] 2 MLJ 70, where there was no doctor present to certify that the deceased was of sound
mind to make the will, and the court found that the deceased was of unsound mind at the time of making the will.
5 Re Eusoff Mohamed Salleh Angullia (decd) [1939] MLJ 100 where a will was impeached on the ground of unsoundness
of mind; Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457, where the medical condition of the testator at the time
he executed the later will was examined. See also [330.010] and [330.384].
6 Subramaniam v Rajaratnam [1957] MLJ 11, CA , where it was held inter alia that the defendant failed to prove that the
testatrix executed her will under undue influence; Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457 where undue
influence was proved and the later will of the testator was not admitted to probate. See also [330.012] and [330.392].
7 Estate of Loh Ah Tong, Loh Siew Lan v Tan Ah Eng [1949] Supp MLJ 33 (where the propounded will was proved to be a
forgery). See also Tho Yow Pew v Chua Kooi Hean [2001] 5 MLJ 578, where the court found that the deceased, in the
condition he was in at the time of execution of the purported will, could only write slowly and not type, when in fact the
propounded will had been typed; Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng [2001] 2 MLJ 70, where based on
expert evidence, the court held that the signature in the will was not that of the deceased. The defendants' failure to
produce their witnesses who could provide opinions to the contrary was fatal to their case.
8 RC O 72 r 13(3).
[330.381]
Part of will excluded
If the court is satisfied that only part of a will was obtained by undue influence or unsoundness of mind,
or that the testator did not have a sound disposing mind in regard to a particular part of a will, or that the
Page 313
plaintiffs had not discharged their duty of proving that the will propounded was the will of a free and
capable testator, it may reject that part and pronounce probate for the rest of the will1.
A document which is testamentary in part only, can be the subject of a probate. However, where the
words are intended to operate in praesenti, they cannot operate as a testamentary instrument2.
1 Norris v Norie Lim (1928-41) SCR 24, where it was held that clauses of the will providing for the relations of the testatrix
should be admitted to probate and that the clauses concerning the Roman Catholic Mission should be set aside. As to
testamentary capacity see [330.009] and following.
2 Re Ena Mohamed Tamby (decd) [1931] SSLR 3.
[330.382]
Evidence of execution
Probate of a will may be opposed on the ground that the statutory requirements for due execution1 have
not been complied with. The evidence of one of the attesting witnesses, if he deposes to the due
execution, is sufficient. If no attesting witnesses can be found, any person who in fact saw the execution
may be called2. The court is entitled to accept evidence on the affidavit3 of any person it thinks fit to
show that the signature on the will is in the handwriting4 of the deceased, or of any matter which may
raise a presumption in favour of the execution of the will5.
Where a prima facie valid will is presented for probate, the burden of proving testamentary capacity6
rests on the person alleging the validity of the will7.
1 See the Wills Act 1959 (Act 346) s 5; see also [330.028] and following; Dr K Shanmuganathan (suing by his attorney Dr
A Puraviappan) v Periasamy s/o Sithambaram Pillai [1994] 2 CLJ 225; Khaw Cheng Bok v Khaw Cheng Poon [1998] 3
MLJ 457.
2 See RC O 71 r 9(1).
4 As to evidence of handwriting experts see Teng Kum Seng v PP [1960] MLJ 225; Dr K Shanmuganathan (suing by his
attorney Dr A Puraviappan) v Periasamy s/o Sithambaram Pillai [1994] 2 CLJ 225 a contentious probate matter where
fraud was alleged.
5 RC O 71 r 9(2). As to the presumption of due execution see [330.033].
6 Krishnavani a/p Muniandy v Sethambal d/o Doraiappah [1998] 7 MLJ 366.
7 Lee Eng Nam v Jones [1922] 3 FMSLR 43; Udham Singh v Indar Kaur [1971] 2 MLJ 263, FC ; Tho Yow Pew v Chua
Kooi Hean [2001] 5 MLJ 578.
[330.383]
Faulty memory and medical evidence
The presumption of due execution1 may be applied in the absence of undue influence2 even though the
attesting witnesses cannot remember the exact date of execution3.
The court must be satisfied on a review of the whole evidence that the testator was of sound mind,
memory and understanding at the time of execution4, but there is a strong presumption in favour of any
will which in terms is not unreasonable and shows no sign of mental deficiency5 or senile decay6.
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1 As to the presumption of due execution see [330.033].
2 See [330.012] and [330.392].
3 Katchi Fatimah v Mohamed Ibrahim [1962] MLJ 374 where it was held that the Wills Act 1959 (Act 346) s 6 had been
complied with.
4 R Mahendran v R Arumuganathan [1999] 2 SLR 579. See also [330.010] and [330.384].
5 Re Eusoff Mohamed Salleh Angullia (decd) [1939] MLJ 100. See also Tho Yow Pew v Chua Kooi Hean [2001] 5 MLJ
578, where the court accepted evidence that the long term effect of the drug, Dexamethasone, had caused the deceased
psychiatric problems.
6 Medical evidence is often necessary where senility involves a global impairment of functions leading to deterioration in
personal habits and sensibility as well as intelligence and memory: see Khaw Cheng Bok v Khaw Cheng Poon [1998] 3
MLJ 457.
[330.384]
Persons of full age and sound mind
It is necessary for the validity of a will that the testator should be of full age and sound mind, memory and
understanding1; words which have consistently been held to mean a sound disposing mind, and to
import sufficient capacity to deal with and appreciate the various dispositions of property which the
testator is about to affix his signature. If at the time of making his will a testator was, through disease, so
deficient in memory that he was oblivious to the claim of his relatives and if that forgetfulness was an
inducing cause of his choosing others to be his legatees2, or the will was made by the testator when he
was in a coma during an illness3, his will is then invalid4.
1 Re Eusoff Mohamed Salleh Angullia (decd) [1939] MLJ 100. See also [330.009], [330.010] and [330.384]. In order to test
the testamentary capacity of the deceased it is necessary to establish that at the time of executing the will the deceased
was of 'sound mind, memory and understanding': Tho Yow Pew v Chua Kooi Hean [2001] 5 MLJ 578.
2 Re Ng Toh Piew (decd), Tan Geok Eng v Lok Ah Ng [1950] MLJ 273.
3 Amanullah bin Haji Ali Hasan v Hajjah Jamilah binti Sheik Madar [1975] 1 MLJ 30.
4 Lim Gaik Teen Neoh v Lim Gaik Kee (1921) 2 BLSS 388, PC ; Morris v Norie Lim (1928-41) SCR 24.
[330.385]
Time at which capacity must exist
The burden of proving testamentary capacity1 falls on the person propounding the will2, but this burden
is satisfied prima facie in the case of a competent testator3 by proving that he executed4 it.
1 As to testamentary capacity see [330.009] and following. See also [330.384].
2 Lim Gaik Teen Neoh v Lim Gaik Kee (1921) 2 BLSS 388, PC ; R Mahendran v R Arumuganathan [1999] 2 SLR 579;
Krishnavani a/p Muniandy v Sethambal d/o Doraiappah [1998] 7 MLJ 366.
3 In Morris v Norie Lim (1928-41) SCR 24, the plaintiffs had not discharged their duty of proving that the propounded will of
the testatrix who was acutely ill with severe pain and her brain to some extent affected was the will of a free and capable
testatrix; Re Syed Mohamed Alsagoff (decd) [1929] SSLR 99, where marks appear on the face of a document propounded
as a testamentary document the onus lies on the person propounding the document to explain them away; Tan Eng Lok v
The Estate of Tan Kim Tiong [1999] 6 MLJ 193 where the competency of the testator to bequeath his property to anyone
Page 315
he desired was accepted.
4 As to the requisites for formal validity see [330.028] and following; as to evidence of execution see [330.382].
[330.386]
Wills made during incapacity
A will made during a period of incapacity1 is void2.
An earlier will may be admitted to probate where a later will is refused probate on the ground that the
testator was not of sound disposing mind at the time of executing the later will3.
2 In Amanullah bin Haji Ali Hasan v Hajjah Jamilah binti Sheik Madar [1975] 1 MLJ 30, the will made by the deceased
when he was in a coma during an illness was not validly made.
3 Re Ng Toh Piew (decd), Tan Geok Eng v Lok Ah Ng [1950] MLJ 273, where the court pronounced the second will
invalid.
[330.387]
General burden of proof
Generally speaking, the law presumes that there is testamentary capacity1, and no evidence is required
to prove the testator's sanity, if it is not impeached. A will, rational on the face of it and shown to have
been signed and attested in the manner prescribed by law2, is presumed, in the absence of any
evidence to the contrary, to have been made by a person of competent understanding3. It is the duty of
the executors4 or any other person setting up a will to show that it is the act of a competent testator; and
his testamentary capacity5 must be established and proved affirmatively6. The issue of capacity is one of
fact.
1 See [330.383]; [330.033]. As to testamentary capacity see [330.009] and following.
3 See [330.384].
5 See R Mahendran v R Arumuganathan [1999] 2 SLR 579; Krishnavani a/p Muniandy v Sethambal d/o Doraiappah [1998]
7 MLJ 366.
6 In Udham Singh v Indar Kaur [1971] 2 MLJ 263, FC , it was held that the burden of proving absence of testamentary
capacity is on the person asserting the absence. See also Tho Yow Pew v Chua Kooi Hean [2001] 5 MLJ 578, where the
court held that where there are suspicious circumstances lurking behind the execution of the will the onus is on the party
propounding the will, to remove, by way of explanations, such suspicious circumstances and that in order to test the
testamentary capacity of the deceased, it is necessary to establish that at the time of executing the will the deceased was
of sound mind, memory and understanding.
[330.388]
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Burden of proof where will made in lucid interval
Once incapacity1 before the date of the will has been established, the burden2 lies on the party
propounding the will3 to show that it was made after recovery or during a lucid interval and therefore
valid4.
1 As to testamentary capacity see [330.009] and following; see also [330.384].
2 See the Evidence Act 1950 (Act 56) s 101. As to the general burden of proof of testamentary capacity see [330.387].
3 See R Mahendran v R Arumuganathan [1999] 2 SLR 579.
4 See Re Eusoff Mohamed Salleh Angullia (decd) [1939] MLJ 100, where the testator who had been pronounced insane
on four previous occasions made a will and codicil during a lucid interval after which he died three days later. The doctor
and the solicitor who attested the will and codicil both deposed to the fact that the testator appeared to be of sound mind,
memory and understanding. The court held that on the evidence as a whole, the will and codicil had been made during a
lucid interval and should be granted probate.
[330.389]
Knowledge and approval essential
Probate of a will may also be opposed on the ground of the testator's want of knowledge1 and approval2
by evidence of circumstances attending or at least relevant to the preparation and execution of the will.
In relation to the validity of a will, it is essential that the testator should have known and approved of its
contents at the time of its execution. The burden of proving3 these facts is assumed by everyone who
propounds a will4, but the burden is satisfied prima facie in the case of a competent testator by proving
that he executed the will5.
Where the defence of want of knowledge and approval is pleaded, no defence is available under this
plea which might have been raised under a plea of want of due execution6, want of soundness of mind7,
undue influence8 or fraud9, unless the other plea has also been pleaded10.
1 Sawinder Kaur Fauja Singh v Charnjit Singh Thakar Singh [1998] 1 CLJ Supp 402 where it was held that as there was
no acknowledgement or signature by the testator to his will in the presence of two or more witnesses present at the same
time, the will was found not to have met the statutory requirements. As to the requisites for formal validity see [330.028].
2 As to want of knowledge and approval see [330.011].
3 See [330.385].
5 See [330.387].
6 See [330.347].
7 See [330.384].
8 See [330.392]; see also [330.012].
9 See [330.393]; see also [330.298].
10 See [330.380].
[330.390]
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Presumption of knowledge and approval
Wherever the circumstances under which a will is prepared raise a well-grounded suspicion that it does
not express the testator's mind1, the court ought not to pronounce in favour of it unless the suspicion is
removed. Thus, where a person propounds a will prepared by himself or on his instructions under which
he benefits, the onus is on him to prove2 the righteousness of the transaction and that the testator knew
and approved of the contents of the will3.
3 Katchi Fatimah v Mohamed Ibrahim [1962] MLJ 374. See also [330.389].
[330.391]
Fiduciary relationship
Whilst the mere proof of the existence of a fiduciary relationship does not raise a presumption of undue
influence1 of itself sufficient to vitiate a gift by will, the existence of a fiduciary relationship between the
testator and a beneficiary raises a suspicion of impropriety and renders it necessary to prove that the
testator knew and approve2 of the contents of the will he has made; still stricter proof is required where
the will has been prepared or obtained by such a beneficiary3.
The medical man, the spiritual adviser and especially the legal adviser4 are each in a fiduciary position to
those who come to them for advice.
1 As to undue influence see [330.392]; see also [330.012].
2 See [330.389], [330.390]; see also [330.011].
3 Morris v Norie Lim (1928-41) SCR 24, where the will was dictated to and taken down by a Roman Catholic priest who
himself took an interest in the estate on behalf of the Roman Catholic Mission, it was held that though there was no direct
evidence of fraud (see [330.298], [330.393]) or undue influence, the gift to the Roman Catholic Mission was set aside as
the plaintiffs had not discharged their duty of proving that the will propounded was the will of a free and capable testatrix.
4 See Re Eusoff Mohamed Salleh Angullia (decd) [1939] MLJ 100, where the testator's solicitor and his doctor who
attested the will, both deposed to the fact that the testator, although physically weak and mentally dull at the time of the
execution of the will, appeared to be of sound mind, memory and understanding.
[330.392]
Undue influence
A will or part of a will may be set aside as having been obtained by undue influence1. If the execution of
the will2 is not in dispute the party alleging undue influence has the right to begin, and must discharge
the burden of proof3 by clear evidence that the influence was in fact exercised4. To constitute undue
influence there must be coercion, pressure of whatever character, whether acting on the fears or the
hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of
restraint under which no valid will can be made5.
1 As to the exclusion of part of a will see [330.381]; as to undue influence see [330.012].

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3 See the Evidence Act 1950 (Act 56) s 101. See also Morris v Norie Lim (1928-41) SCR 24; Khaw Cheng Bok v Khaw
Cheng Poon [1998] 3 MLJ 457.
4 Subramaniam v Rajaratnam [1957] MLJ 11, CA , where undue influence was not proved; Katchi Fatimah v Mohamed
Ibrahim [1962] MLJ 374 where the court held that there was no evidence to substantiate the allegation of undue influence.
5 Morris v Norie Lim (1928-41) SCR 24.
[330.393]
Fraud
It may be pleaded as a defence1 in a probate action that the execution of the alleged will was obtained
by fraud. Where highly suspicious circumstances2 surrounding the emergence of the will exist, which are
not normally expected in any ordinary situation, then it is questionable whether the will of the deceased is
genuine or a forgery3.
1 As to the defences available see [330.380].
3 See Robert Tan v Tommy Tan [1984] 1 MLJ 230; Estate of Loh Ah Tong, Low Siew Lan v Tan Ah Eng [1949] Supp MLJ
33; Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, FC , where the Federal Court held that the
will was a forgery. See also [330.298].
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Representation/ D. Probate in Solemn Form/ (iv) Costs of Probate Actions
(iv) Costs of Probate Actions
[330.394]
Discretion of court
Subject to the express provisions of any written law and rules1, the costs2 of and incidental to
proceedings in the court, including the administration of estates and trusts, will be in the discretion of the
court, and the court will have full power to determine by whom and to what extent the costs are to be
paid3.
Notwithstanding anything in the rules governing costs4 or under any written law, unless the court is of the
opinion that there was no reasonable ground for opposing the will5, no order may be made for the costs
of the other side to be paid by the party opposing a will in a probate action6 who has given notice with his
defence to the party setting up the will that he merely insists upon the will being proved in solemn form7
of law and only intends to cross-examine the witnesses produced in support of the will8.
1 Ie the Rules of Court 2012 (PU (A) 205/2012).
2 'Costs' includes fees, charges, disbursements, expenses and remuneration: RC O 59 r 1(1). As to costs see CIVIL
PROCEDURE (2014 Reissue) [190.12-001] and following.
3 RC O 59 r 2(2).
4 Ie RC O 59.
5 As to the grounds for opposing probate see [330.380] and following.
7 As to when proof in solemn form is necessary see [330.364] and following.
8 RC O 59 r 9(1).
[330.395]
Taxation of costs
The court in awarding costs1 may, if it thinks fit, and if the costs are to be paid out of a fund; or the
person to whom the costs are to be paid is or was a party to the proceedings in the capacity of trustee or
personal representative2, order or direct that the costs are to be taxed as if the person were a trustee of
the fund or as if the costs were to be paid out of a fund held by that person, as the case may be3.
Every taxation of the costs4 which a person who is or has been a party to any proceedings in the
capacity of trustee or personal representative is entitled to be paid out of any fund which he holds in that
capacity5.
On any taxation, no costs will be disallowed, except in so far as those costs or any part of their amount
may not, in accordance with the duty of the trustee or personal representative as such, have been
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incurred or paid, and should for that reason be borne by him personally6.
1 As to the discretion of the court in awarding costs see [330.394]. As to costs see [330.394] note 2; see also CIVIL
3 RC O 59 r 15(3).
4 As to costs generally see CIVIL PROCEDURE (2014 Reissue) [190.12-001] and following.
5 RC O 59 r 18(1).
6 RC O 59 r 18(2). As to a personal representative's remuneration see [330.282] and following; as to when a personal
representative is liable for costs see [330.396].
[330.396]
When personal representative is liable for costs
Where a person is or has been a party to any proceedings in the capacity of trustee, personal
representative1 or chargee, he is, unless the court otherwise orders, entitled to the costs2 of those
proceedings in so far as they are not recovered from or paid by another person, out of the fund3 held by
the trustee or personal representative or the mortgaged property, as the case may be; and the court may
otherwise order only on the ground that the trustee, personal representative or mortgagee has acted
unreasonably or, in the case of a trustee or personal representative, has in substance acted for his own
benefit rather than for the benefit of the fund4.
2 As to costs see [330.394] note 2; see also CIVIL PROCEDURE (2014 Reissue) [190.12-001] and following.
3 A fund, being a fund out of which costs are to be paid or which is held by a trustee or personal representative, includes
any estate or property, whether movable or immovable, held for the benefit of any person or class of persons; and a fund
held by a trustee or personal representative includes any fund to which he is entitled (whether alone or together with any
other person) in that capacity, whether the fund is for the time being in his possession or not: RC O 59 r 1(2).
4 RC O 59 r 9(2). As to a personal representative's remuneration see [330.282] and following.
[330.397]
Legatee liable for costs
The general rule is that a legatee whose claim is dismissed is not entitled to costs1.
1 Re Teo Soo Piah (decd) [1950] MLJ 176 where the costs of the application must be paid by the applicant. As to costs
see [330.394] note 2; see also CIVIL PROCEDURE (2014 Reissue) [190.12-001] and following.
[330.398]
Security for costs

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Security for costs1 may be obtained on the conditions laid down in the rules2. The main ground is that
the plaintiff or party instituting proceedings is resident out of the jurisdiction of the court3.
1 As to security for costs see CIVIL PROCEDURE (2014 Reissue) [190.3-234], [190.3-235].
2 Ie RC O 23.
3 RC O 23 r 1(1)(a); see Omar Ali bin Mohd v Syed Jafaralsadeg bin Abdulkadir Alhadad [1995] 3 SLR 388, where it was
held that the provisions of the Rules of the Supreme Court 1990 (Sing) O 23 r 1(1) (which are in pari materia with RC O 23
r 1(1)) confer upon the court a real discretion to consider the circumstances of each case and that there is no longer an
inflexible rule that a plaintiff resident abroad should provide security for costs as the major concern is the likelihood of the
foreign plaintiff succeeding.
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Representation/ E. General Grants of Administration/ (i) General
E. GENERAL GRANTS OF ADMINISTRATION
(i) General
[330.399]
Foundation of jurisdiction
Where a person dies intestate1, representation to his estate is obtained by means of a grant of letters of
administration. The object of obtaining letters of administration is to enable a person to deal with the
property of the deceased. In any case, the court2 has the discretion to grant letters of administration3
limited to the collection and preservation of the property of the deceased to any person the court thinks
fit4.
1 For the meaning of 'intestate' see [330.246] note 5. See also the Distribution Act 1958 (Act 300) s 3. For the meaning of
'will' see [330.242] note 4. For the meaning of 'property' see [330.242] note 7.
3 For the meaning of 'administration' see [330.244] note 8. See also [330.431] and following.
4 Probate and Administration Act 1959 (Act 97) s 23. See HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383.
[330.400]
Grants on grounds other than intestacy
Letters of administration are granted not only where the deceased died wholly intestate1, but also where,
in certain circumstances, he died leaving a will. In such cases letters of administration are granted with
the will annexed2.
1 See [330.399] note 1.
[330.401]
Grant to foreign representative
A non-resident is not disqualified and disabled absolutely in law1 from obtaining a grant of letters of
administration if he is otherwise a fit and proper person and circumstances render it expedient that the
grant should be made to him2.
1 See the Probate and Administration Act 1959 (Act 97) s 29(c) and [330.434].
Page 323
2 Palaniappa Chettiar v S Solai [1961] MLJ 283.
[330.402]
Persons having prior rights to administer
On the failure of executors1, a right to the grant is given to the following persons in the following order2:
(1) a universal or residuary legatee;

(2) a personal representative3 of a deceased universal or residuary legatee;
(3) such person or persons, being beneficiaries under the will4, as would have been entitled to
a grant of letters of administration if the deceased had died intestate5;
(4) a legatee having a beneficial interest; and
(5) a creditor of the deceased6.
Where the deceased died wholly intestate as to his estate7, administration8 will, if application is made for
the purpose, be granted to some one or more of the persons interested in the residuary estate of the
deceased, unless by reason of the insolvency of the estate or other special circumstances9 the court10
thinks it expedient to grant administration to some other person11. In the case of persons dying wholly
intestate after 30 August 199712, the following persons are entitled to a grant of administration in the
following order of priority:
(a) the surviving spouse who is entitled to the whole estate if there is no issue13 or parent or
parents14;
(b) the surviving spouse and the surviving parent or parents if there is no issue15;
(c) the surviving issue who is entitled to the whole estate if there is no spouse or parent or
parents16;
(d) the surviving parent or parents who is or are entitled to the whole estate if there is no
spouse or issue17;
(e) the surviving spouse and the surviving issue if there is no parent or parents18;
(f) the surviving issue and the surviving parent or parents if there is no surviving spouse19;
and
(g) the surviving issue, the surviving spouse and the surviving parent or parents20;
If there is no surviving spouse, issue, parent or parents, the following persons are entitled to administer
in the following order of priority21: (i) brothers and sisters; (ii) grandparents; (iii) uncles and aunts; (iv)
great grandparents; and (v) great grand uncles and great grand aunts.
1 See [330.431]. For the meaning of 'executor' see [330.243]. As to the appointment of executors see [330.248] and
following.
2 Probate and Administration Act 1959 (Act 97) s 16 proviso (i)-(v). See Re Ramanathan s/o AR A Nachiappan
See also RC O 71 r 17.
5 See [330.399] note 1.
6 See Fazil Rahman v AR S Nachiappa Chettiar [1963] MLJ 309. See also [330.417] and following.

Page 324
9 Re Tan Chwee Boon (decd), Yap Suat Tee v Cherie See Cheng Choo [1966] 1 MLJ 284, FC , where the Federal Court
held that where the widow and children of an intestate have applied for a grant of letters of administration and no special
circumstances exist, they are entitled to the grant; Wong Moy (administratrix of the estate of Theng Chee Khim (decd)) v
Soo Ah Choy [1996] 3 SLR 398, CA (Sing) , where the lawful widow of an intestate showed that special circumstances
existed to enable her to bring the action qua a beneficiary and on behalf of her children as beneficiaries of the deceased.
11 Probate and Administration Act 1959 s 30 proviso. See RC O 71 r 19. See also Re Lao Leong An [1867] 1 SSLR 1,
where the court granted letters of administration to the first wife of a Chinese intestate in preference to his second wife,
notwithstanding the second wife was entitled to an equal share of the intestate's property with the first wife. The law of
China was considered. As to the exceptions to the rules as to priority see RC O 71 r 23 and HSBC (M) Trustee Bhd v
Kong Kim Hoh [1999] 3 MLJ 383.
12 The Distribution Act 1958 (Act 300) s 6(1) (as amended by the Distribution (Amendment) Act 1997 (Act A1004) s 3
which came into force on 31 August 1997).
13 'Issue' includes children and the descendants of deceased children; 'child' means a legitimate child and where the
deceased is permitted by his personal law a plurality of wives includes a child by any of such wives, but does not include
an adopted child other than a child adopted under the provisions of the Adoption Act 1952 (Act 257): Distribution Act 1958
s 3. See Pang Chuan Cheong v Oh Kwong Foi [2007] 8 MLJ 354.
14 Distribution Act 1958 s 6(1)(a). 'Parent' means the natural mother or father of a child, or the lawful mother or father of a
child under the Adoption Act 1952: Distribution Act 1958 s 3. As to grant to surviving spouse see [330.407], [330.408]; as
to grant to next-of-kin see [330.409]-[330.412].
15 Distribution Act 1958 s 6(1)(b). See Chia Siew Li v Liew Khey Cheong (as administrator of the estate of Liew Fatt
Cheong, decd) [2010] 3 MLJ 802, CA , where the issue arose as to the meaning of the word 'spouse' under this provision.
It was claimed by the plaintiff that the couple had in fact contracted a customary marriage. The plaintiff and the deceased
had shared a relationship that had later prompted them to become joint applicants to be registered as husband and wife,
but they had not entered into a marriage. The court found that it is germane that there must be a marriage before a woman
can qualify as a wife or spouse. Further, in the absence of expert evidence it was difficult to determine whether the comb
breaking ceremony at the wake of the deceased could have constituted a customary marriage between the plaintiff and the
deceased. On the facts and the law, the plaintiff and the deceased therefore had never been constituted as husband and
wife and thus the plaintiff was outside the ambit of the word 'spouse' in s 6(1)(b) and not entitled to one-half of the estate
of the deceased. The court also said that the use of dictionaries and other literary sources would be useful in interpreting
the word 'spouse'. From the definitions provided in these sources it was obvious that the plaintiff did not qualify to be a
'spouse' of the deceased. There was no marriage in the legal sense of the word between the plaintiff and the deceased.
16 Distribution Act 1958 s 6(1)(c).
17 Distribution Act 1958 s 6(1)(d).
18 Distribution Act 1958 s 6(1)(e). In Chai Chin Foo v Assistant Registrar, Land & Survey Department, Samarahan Division
[2008] 7 CLJ 1, it was held that the property in question originally belonged to the father of the plaintiffs who had died
interstate. Therefore, as a matter of law, all issues were entitled to a share of the father's estate. The deceased's estate
was administered by the plaintiffs' mother. As an administratrix she had no legal right to transfer the said property to only
two of the children excluding the plaintiffs. Prima facie such transfer was invalid, null and void and would be against the
Probate and Administration Act 1959 (Act 97) to be read with the Distribution Act 1958 (as amended by the Distribution
(Amendment) Act 1997).
19 Distribution Act 1958 s 6(1)(f).
20 Distribution Act 1958 s 6(1)(g). See Re Tan Hui Guan, decd (Phang Siew Fa v Aw Kim Siok) [2006] 3 MLJ 663; and
Pang Chuan Cheong v Oh Kwong Foi [2007] 8 MLJ 354, in terms of an issue about which next-of-kin was entitled to get
the grant.
21 Distribution Act 1958 s 6(1)(i).
[330.403]
Persons entitled in default
In default of any person1 taking an absolute interest in the estate, the Government is entitled to the
Page 325
whole of the estate except insofar as the same consists of land2.
If the universal legatee and beneficiary and all persons entitled to a grant under such legatee and
beneficiary3 have been cleared off, a grant may be made to a creditor4 of the deceased or to any
purchaser who, notwithstanding that he has no immediate beneficial interest in the estate, has acquired
an interest in the property of the estate for valuable consideration5.
1 As to the persons having prior rights to administer see [330.402].
2 Distribution Act 1958 (Act 300) s 6(1)(j) (as amended by the Distribution (Amendment) Act 1997 (Act A1004) s 3).
3 See the Probate and Administration Act 1959 (Act 97) s 16 proviso (i)-(iv) and [330.402].
4 Probate and Administration Act 1959 s 16 proviso (v). See Fazil Rahman v AR S Nachiappa Chettiar [1963] MLJ 309.
5 Re TAS Sanmugam Pillay (decd) [1951] MLJ 81.
[330.404]
Illegitimacy
An illegitimate child has a right to succeed on the intestacy of his or her mother who leaves no legitimate
or legitimated issue surviving1. Similarly, where an illegitimate child who has not been legitimated, died
intestate, his mother, if surviving, will be entitled to succeed on the intestacy of her illegitimate child as if
the child had been born legitimate2 and she had been the only surviving parent3.
1 Legitimacy Act 1961 (Act 60) s 11(1).
2 As to the right of illegitimate children to share in the estate see Wong Kai Woon v Wong Kong Hom [1991] 2 MLJ 469.
3 Legitimacy Act 1961 s 11(2). See also FAMILY LAW (2013 Reissue) [390.196].
[330.405]
Renunciation of right to grant
Any person who is or may become entitled to representation may expressly renounce his right to the
representation1. Renunciation may be made orally by the person renouncing or his advocate, on the
hearing of any originating summons or probate action2, or in writing signed by the person so renouncing
and attested either by an advocate or by any person before whom an affidavit may be sworn3.
Unless the Registrar otherwise directs, no person who has renounced administration in one capacity
may obtain a grant in some other capacity4.
1 Probate and Administration Act 1959 (Act 97) s 8(1); see [330.262]. For the meaning of 'representation' see [330.256]
note 1.
2 For the meaning of 'probate action' and 'probate' see [330.262] note 3 and [330.244] note 7 respectively.
3 Probate and Administration Act 1959 s 8(2) and see RC O 71 r 31(4). As to oaths and affirmations see CIVIL PROCEDURE
(2014 Reissue) [190.7-004].
4 RC O 71 r 31(2).
Page 326
[330.406]
Number of administrators
Representation1 may not be granted to more than four persons in respect of the same property2. If any
beneficiary is an infant, or if a life interest arises under the intestacy, administration3 must be granted to
not less than two individuals or to a trust corporation4, with or without an individual5.
2 Probate and Administration Act 1959 (Act 97) s 4(1); see [330.249]. For the meaning of 'property' see [330.242] note 7.
4 For the meaning of 'trust corporation' see [330.251] note 5. As to grants to trust corporations see [330.413].
5 Probate and Administration Act 1959 s 4(2): see [330.251].

Page 327
Representation/ E. General Grants of Administration/ (ii) Surviving Spouse
(ii) Surviving Spouse
[330.407]
Right to grant in case of judicial separation
The property of a wife who at the time of her death is judicially separated from her husband will, in case
she dies intestate, go as it would have gone if her husband had been then dead1 whereas in a divorce
proceeding, a decree nisi is only a provisional order and does not determine the marriage until the
decree is made absolute2.
1 Law Reform (Marriage and Divorce) Act 1976 (Act 164) s 66(1). No distinction is made between property acquired before
and after the separation. However, this provision does not apply to the property of a separated husband and the wife
would still be entitled in the same way as if there had not been any judicial separation; see [330.649] and following. As to
divorce see FAMILY LAW (2013 Reissue) [390.258] and following.
2 A wife remains a wife and similarly a husband remains a husband until decree absolute: see Suci Mathews v Thomas
Mathews [1985] 2 MLJ 228. See also the Inheritance (Family Provision) Act 1971 (Act 39) s 3.
[330.408]
Sole and joint grant
A grant is made to the surviving spouse alone where he or she is the only person beneficially entitled
under the intestacy1, or where there is no life interest or no minor is contingently entitled2. Where a life
interest arises or a minor is contingently entitled, the grant is necessarily a joint one3.
1 See [330.402]. Before the coming into force of the Law Reform (Marriage and Divorce) Act 1976 (Act 164) where there
are two surviving widows as in the case of Re Ing Ah Mit (1888) 4 Ky 380, the court granted joint administration to both the
surviving widows of a Chinese who died intestate.
2 See [330.406].
3 See [330.411].
Page 328
Representation/ E. General Grants of Administration/ (iii) Next-of-kin
(iii) Next-of-kin
[330.409]
Next-of-kin among themselves
Where there is a contest between persons equally entitled to a grant of administration1, certain rules of
preference are recognised. Preference is given to:
(1) the next-of-kin2 who has the support of the greatest interest3; and
(2) the one who comes first for the grant.
1 See [330.402].
2 The primary expression of 'next-of-kin' is the nearest blood relations of the testator at the time of death, but husbands
and wives of beneficiaries must be excluded: British Malaya Trustee and Executor Co Ltd v Chan Mek Tuan [1937] MLJ
233.
3 Re Tang Pui Sim (decd) [1967] 2 MLJ 96, FC (Sing) .
[330.410]
Circumstances affecting right of preference
A person though not a 'next-of-kin'1, is nevertheless, entitled to a grant of letters of administration in

priority2 to another so entitled under the estate of the deceased3, unless a case of unfitness on the part
of the person so entitled to a grant is established4 or very special circumstances exist so as to enable the
court to pass over5 such person's entitlement to a grant6. Letters of administration may be granted to a
person not because he is entitled to a share in the estate of the deceased, but because he is thought to
be a suitable person to be granted such letters of administration7.
Unless the Registrar otherwise directs, administration will be granted to a living person in preference to
the personal representative8 of a deceased person who would, if living, be entitled in the same degree
and to a person not under disability in preference to an infant entitled in the same degree9.
1 See [330.409] note 2.
2 As to persons having prior rights to administer see [330.402].
3 Re Khoo Chow Sew (1872) 2 Ky Ecc 22 where it was held that the widow is given priority even the deceased is a
Chinese.
4 In Re Jeeva Singh (decd) [1931] SSLR 13, the right of the widow was preferred to that of the next-of-kin.
5 In Jigarlal Kantilal Doshi v Damayanti Kantilal Doshi [1998] 1 SLR 211, the first plaintiff (a beneficiary of the estate of the
testator) was originally charged with the murder of the testator in Malaysia, but the charge was later reduced to causing
grievous hurt. It was the first plaintiff's concern that if he were found guilty of causing the testator's death, he would not be
entitled to his share of the estate and thus he never offered himself as a replacement executor when he sought to revoke
Page 329
the grant of probate issued by the Malaysian courts to the executrix and co-executor of the testator's will; HSBC (M)
Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383, where it was held that the Probate and Administration Act 1959 (Act 97) s
30 gives the court a wide discretion as to persons to whom administration is to be granted thus enabling the court to pass
over a person otherwise entitled to a grant.
6 Re Tan Chwee Boon (decd), Yap Suat Tee v Cherie See Cheng Choo [1966] 1 MLJ 284, FC .
7 Tam v Wateh [1963] MLJ 141.
8 See [330.242].
9 RC O 71 r 22(3).
[330.411]
Joint grants
Except where the grant is made to a trust corporation1, a joint grant to two or more individuals is
necessary if there is a minority, or if a life interest arises under the will or intestacy2. The purpose is to
protect the interest of the minor or remainder man, and for this reason it seems that if after grant to one
administrator the value of the estate is or becomes such that a previously unexpected minority or
remainder man arises, the proper course is for him to apply for the appointment of a second
administrator. The court however, has a discretion to appoint a single administrator for such reason as it
may think fit3.
If there is only one personal representative4 (not being a trust corporation), then, during the minority of a
beneficiary or the subsistence of a life interest, and until the estate is fully administered, the court5 may
on the application6 of any person interested or of the guardian, committee or receiver of any such
person, appoint one or more personal representatives in addition to the original personal representative7.
1 See [330.247], [330.258]. See also [330.413].
2 Probate and Administration Act 1959 (Act 97) s 4(2); see [330.251].
3 Probate and Administration Act 1959 s 4(2) proviso (a).
4 See [330.242].
6 As to the procedure see [330.412].
7 Probate and Administration Act 1959 s 4(3); see Re Lua Kin Suai [1998] 7 MLJ 258.
[330.412]
Procedure
The application to add a personal representative1 must be made to the Registrar by notice of
application2 and must be supported by an affidavit by the applicant, the consent of the person proposed
to be added as personal representative and such other evidence as the Registrar may require3.
On any such application the Registrar may direct that a note will be made on the original grant of the
addition of a further personal representative, or he may impound or revoke the grant4 or made such
other order as the circumstances of the case may require5.
Page 330
1 See [330.242]. As to joint grants see [330.411].
2 See [330.323].
3 RC O 71 r 21(1). The notice of application must be served on all persons entitled in the same degree as the applicant: O
71 r 21(2). As to persons having prior rights to administer see [330.402].
5 RC O 71 r 21(3).
Page 331
Representation/ E. General Grants of Administration/ (iv) Trust Corporations and Public Trustee
(iv) Trust Corporations and Public Trustee
[330.413]
Grants to trust corporations
Where a trust corporation1 is appointed an executor in a will2, either alone or jointly3 with another
person, the court4 may grant probate5 to the corporation either solely or jointly with another person, as
the case may require, and the corporation may act as executor accordingly6.
Administration7 may be granted to any trust corporation either solely or jointly with another person, and
the corporation may act as administrator accordingly8.
Where a trust corporation applies for a grant through one of its officers, such officer must file a certified
copy of the resolution authorising him to make the application and must depose in the originating
summons that the corporation is a trust corporation, and that it has power to accept a grant9. However, it
is not necessary to file a certified copy of the resolution where the officer through whom the application is
made is included in a list of persons authorised to make such applications kept by the Registrar10.
Where a trust corporation has obtained administration it is not required to give security11.
1 For the meaning of 'trust corporation' see [330.251] note 5. See also TRUSTS (2015 Reissue) [310.154]-[310.158].
2 For the meaning of 'executor' and 'will' see [330.242] note 4.
3 As to joint grants see [330.411].
8 Probate and Administration Act 1959 s 13(2). For the meaning of 'administrator' see [330.242] note 5.
9 RC O 71 r 30(1).
11 Probate and Administration Act 1959 s 35(3). As to security see [330.468] and following.
[330.414]
Amanah Raya Berhad
Amanah Raya Berhad (the Corporation)1, is the corporatised office of the Public Trustee2.
A testator may appoint the Corporation to be trustee under any testamentary instrument without
Page 332
previously applying to the Corporation for its consent to act as such3. The Corporation may not decline to
accept the appointment for reason only of the small value of the property to which the appointment
relates4.
Where the value of the property without deduction for debts, but not including the value of any property
which the deceased possessed or was entitled to as trustee and not beneficially, does not exceed
RM5,0005; it appears to the Corporation that the persons beneficially entitled are persons of small
means6; and the Corporation can administer the property7, the Corporation must administer the estate8.
1 See [330.247] note 1.
2 For the meaning of 'Public Trustee' see [330.247] note 3. The Public Trust Corporation Act 1995 (Act 532) which came
into force on 1 August 1995 amended the laws relating to the Public Trustee and the Official Administrator (see [330.247]
note 4) and the said Act retains the essence of the Public Trustee Act 1950, which is now repealed, while incorporating
some provisions of the Probate and Administration Act 1959 (Act 97) in relation to the office of the Official Administrator.
See also TRUSTS (2015 Reissue) [310.154]-[310.158].
3 See the Public Trust Corporation Act 1995 ss 11(1), (2), 12(1). See also Re Teo Hoo Lye (decd) (1942) 4 MC 299.
4 Public Trust Corporation Act 1995 s 11(3). For these purposes 'property' includes all property, movable or immovable,
and all estates, interests, easement and rights, whether equitable or legal in, to or out of property, choses-in-action, money
and goodwill: s 2.
5 Public Trust Corporation Act 1995 s 18(1)(a).
6 Public Trust Corporation Act 1995 s 18(1)(b).
7 Public Trust Corporation Act 1995 s 18(1)(c).
8 As to summary administration of movable property by the Corporation see the Public Trust Corporation Act 1995 s 17
and [330.426].
[330.415]
Grants to the Corporation
The Corporation1 has the power to apply for letters of administration2 where the persons appointed by
the deceased have not proceeded within six months after his death to prove the will or, in the case of
intestacy, to make the necessary application for the grant of letters of administration3.
Furthermore, where any person who has received a grant of letters of administration neglects4 within
three months of the date of the grant to furnish such security as he is lawfully required to furnish5; or
where an administrator6 has failed to extract the grant of letters of administration within a reasonable
time after an order has been made for a grant to issue, the Corporation may apply to the court to set
aside the order for the grant and to grant letters of administration of the estate to itself7.
The court may grant letters of administration to any person which the court thinks fit, for preserving the
property8 of a deceased person; and where letters of administration are granted to the Corporation, the
letters of administration will be limited to the collection and preservation of property of the deceased and
giving discharge of debts due to the estate, subject to the directions of the court9.
1 See [330.247] note 1.
3 See the Probate and Administration Act 1959 (Act 97) s 81. See also Re Hameed Nachial (decd) [1937] MLJ 98, CA ,
where it was held that the executor lost his absolute right to appointment by reason of his neglect within six months after
the death of the testator to make an application for probate. In Jamail bin Mat Diah v K S Abd Samad a/l Sahul Hamid
[1994] MLJU 406, the plaintiff instituted a claim against the defendant on 21 July 1985. The matter was set down for trial
Page 333
on 18 October 1986 but was subsequently postponed to a later date because the plaintiff had passed away on 9 June
1986. On 7 November 1987, the plaintiff's counsel applied to appoint the Setiausaha Baitulmal dan Wakaf Negeri Kedah to
substitute the plaintiff. Following a series of postponements, on 27 January 1994, the defendant applied to strike out the
plaintiff's action for want of prosecution. The High Court held, inter alia, that the plaintiff's counsel should have sought the
appointment of any party allowed by law to continue the action when the plaintiff died without any next-of-kin. Counsel also
did not inform the Official Administrator who would have been able to use his powers provided under the Probate and
Administration Act 1959 s 81.
4 A person who is unable to do something or has a reasonable excuse for not doing it cannot be said to have neglected or
refused to do it: see Securicor (M) Sdn Bhd v Universal Cars Sdn Bhd [1985] 1 MLJ 84.
5 Public Trust Corporation Act 1995 (Act 532) s 15(a). As to security see [330.468] and following.
6 See [330.245].
7 Public Trust Corporation Act 1995 s 15(b).
9 Probate and Administration Act 1959 s 23; see HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383.
[330.416]
Corporation may take possession of property
The Corporation1 may, as soon as it learns on such evidence as it deems sufficient that any person has
died intestate2 leaving property3 in Malaysia, forthwith take possession of the property and provide for its
safe custody until letters of administration are granted by the court4.
The Corporation however, is empowered to administer the property in the absence of the grant of letters
of administration of the estate of the deceased person, as though letters of administration had been
granted to it, and the its receipt is a sufficient discharge to any person who pays any money or delivers
any property to it5, provided that every such person must, on request, supply to it a full and true account
of any such property dealt with by him and must, if so required, pay or deliver to it any money or other
property remaining under his control6.
If the property is of no appreciable value or its value, in the opinion of the Corporation, is so small as to
render impracticable the sale of it, the Corporation may direct such property to be destroyed, or
otherwise disposed of as it thinks fit7.
1 See [330.247] note 1.
2 For the purposes of the Public Trust Corporation Act 1995 (Act 532), 'intestate' includes a person who leaves a will but
dies intestate as to some beneficial interest in his property: s 2.
3 See [330.414] note 4.
6 Public Trust Corporation Act 1995 s 17(3) proviso.

Page 334
Representation/ E. General Grants of Administration/ (v) Creditors
(v) Creditors
[330.417]
Creditor's right to grant
If all persons entitled to a grant in priority1 have been cleared off, a grant may be made to a creditor2.
Where there is a minority or a life interest, the grant must be made either to a trust corporation, with or
without an individual, or to not less than two individuals3, unless the estate is insolvent or the grant is
made pending suit.
A creditor may be preferred to persons entitled to share in the estate by reason of insolvency or other
special circumstances4.
1 See [330.402].
2 Probate and Administration Act 1959 (Act 97) s 16 proviso (v). See Fazil Rahman v AR S Nachiappa Chettiar [1963] MLJ
309. See also [330.419].
3 Probate and Administration Act 1959 s 4(2); see [330.251].
4 Probate and Administration Act 1959 s 30 proviso. See [330.418].
[330.418]
Conflict between creditor and person entitled
A creditor1 has no right to oppose a grant to a person entitled to administer2, but where the estate is
insolvent the court has a statutory power3 to pass over the person entitled to the grant4, and may grant
administration to a creditor in preference to the person entitled5.
1 See [330.419].
3 See the Probate and Administration Act 1959 (Act 97) s 30 proviso.
4 See [330.410]; HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383.
5 Fazil Rahman v AR S Nachiappa Chettiar [1963] MLJ 309.
[330.419]
Meaning of a creditor
Page 335
For the purpose of obtaining a grant, any purchaser who, notwithstanding that he has no immediate
beneficial interest in the estate of the deceased, but has acquired an interest in the estate for valuable
consideration, is a creditor1.
1 Re TAS Sanmugam Pillay (decd) [1951] MLJ 81. See also the Probate and Administration Act 1959 (Act 97) s 16 proviso
(v).
Page 336
Representation/ E. General Grants of Administration/ (vi) Discretionary Grants
(vi) Discretionary Grants
[330.420]
Court's discretionary power
In granting general or limited administration of estates1, the court2 must have regard to the rights of all
persons interested3 in the estate of the deceased person and in particular the court has jurisdiction to
make a grant of probate to the absent executor's attorney, limited only to certain specific property4, and
to grant letters of administration with the will annexed5 and letters of administration in case of intestacy6,
limited until the absent executor7 or person entitled to letters of administration obtains the grant himself.
Where the deceased died wholly intestate8 as to his estate, administration will be granted to some one or
more of the persons interested in the residuary estate of the deceased, unless by reason of the
insolvency of the estate or other special circumstances9, the court thinks it expedient to grant
administration to some other person10.
1 For the meaning of 'administration' see [330.244] note 8. For the meaning of 'estate' see [330.242] note 3. As to limited
grants of administration see [330.431] and following.
3 See the Probate and Administration Act 1959 (Act 97) s 30. As to persons having prior rights to administer see
[330.402].
4 Lily Iskandar v Bonardy Leo [1986] 1 MLJ 368, CA (Sing) . See also [330.445].
5 See the Probate and Administration Act 1959 s 29(a), (b); Re Ramanathan s/o AR A Nachiappan (Administrator De
6 See the Probate and Administration Act 1959 s 29(c).
8 For the meaning of 'intestate' see [330.399] note 1.
9 Re Tan Chwee Boon (decd), Yap Suat Tee v Cherie See Cheng Choo [1966] 1 MLJ 284, FC ; see Wong Moy
(administratrix of the estate of Theng Chee Khim (decd)) v Soo Ah Choy [1996] 3 SLR 398, CA (Sing) , where the lawful
widow of a deceased intestate showed that special circumstances existed to enable her to bring the action qua a
beneficiary and on behalf of her children as beneficiaries of the estate of the intestate. As to special circumstances see
[330.421].
10 Probate and Administration Act 1959 s 30 proviso.
[330.421]
Special circumstances
No broad rule of law can be laid down as to what are special circumstances enabling the court to pass
over1 a person otherwise entitled to a grant2; each case must be decided upon its own merits3. The fact
that the estate of the deceased was a substantial one and the children of the second widow were minors
Page 337
did not constitute such special circumstances as would enable the court to pass over the first widow and
her children4. The court may also appoint a receiver for the property of any person who dies within
Malaysia, pending a grant of probate or letters of administration5 or appoints a receiver on the fact that
the trustee resides in a foreign country6.
1 Jigarlal Kantilal Doshi v Damayanti Kantilal Doshi [1998] 1 SLR 211. As to passing over by consent see [330.422].
2 HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383. As to persons having prior rights to administer see [330.402].
3 Re Lao Leong An [1867] 1 SSLR 1, where in granting letters of administration, the first wife of the Chinese polygamous
intestate was preferred to the second wife; Re Three Petitions for Letters of Administration [1972] 1 MLJ 244; which held
that the widower, widow or next-of-kin of the deceased are preferable to the Public Trustee, unless there is good cause
shown to the contrary.
4 Re Tan Chwee Boon (decd), Yap Suat Tee v Cherie See Cheng Choo [1966] 1 MLJ 284, FC , which held that where the
widow and children of an intestate have applied for a grant of letters of administration and no special circumstances exist,
they are entitled to the grant.
5 See the Probate and Administration Act 1959 (Act 97) s 45 and [330.258]. See also Tay Lai Heng v Tay Lai Hock
(unreported, 24 November 1990; Civil Suit 22-61-1998).
6 Shaik Lebbai Maricar v Haji Mohamed Eusope [1929] SSLR 141.
[330.422]
Passing over by consent
Where an executor1 or an administrator2 entitled to take out a grant does not wish to take out the grant,
he may renounce3 all his title and right to the probate and execution of the will of the deceased or the
letters of administration of the deceased. Letters of administration with the will annexed may be granted
to such person or persons as the court deems fittest to administer the estate4 on failure of executors5 to
attend to the business of taking out probate.
When the beneficial interest in the whole estate of the deceased is vested absolutely in a person who
has renounced his right to a grant and has consented to administration being granted to the person or
persons who would be entitled to his estate if he himself had died intestate, administration may be
granted to such person or one of more (not exceeding four) of such persons6.
1 See [330.243], [330.244].
2 See [330.245].
3 As to renunciation see [330.262] and following. See also RC O 71 r 31.
4 Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will annexed, of the Estate of K AL RM
6 RC O 71 r 24.
[330.423]
Person with prior right presumed dead
Where the person who would, if living, be entitled to the grant1 has been missing for many years, the
Page 338
court may require the applicant for a grant of probate or letters of administration to swear that death had
taken place2, as the burden of proving that such a person is dead is on the person who affirms it3.
2 See Re Karupaya (decd) [1962] MLJ 128 which held that where the fact of death is not in doubt and the applicant can
swear that the death had occurred, no order is required on any application for grant of probate or letters of administration
to swear that death had taken place. As to the presumptions of survivorship and death see [330.356], [330.357].
3 Evidence Act 1950 (Act 56) s 107; and see EVIDENCE (2011 Reissue) [500.056], [500.057]. See Ee Hoon Soon v Chin
Chay Sam (1889) 1 SLJ 147. As to proof of death see [330.355].
[330.424]
Trust estates
Where a person dies, leaving property1 in which he had no beneficial interest on his own account, and
does not leave a representative who is able and willing to act2, letters of administration3, limited to that
property, may be granted to the person beneficially interested4 in the property, or to some other person
on his behalf5.
4 See Syed Salim Alhadad v Dickson Holdings Pte Ltd [1997] 2 SLR 257 where the plaintiffs had no beneficial interest in
the estate.
[330.425]
Notice to other executors of grant to attorney
Where the person so entitled to a grant resides outside Malaysia, administration may be granted to his
lawfully constituted attorney1 for his use and benefit, limited until such person obtains a grant or in such
other way as the Registrar may direct2. However, administration will not be granted to his attorney
without notice to the other executors3, if any, unless such notice is dispensed with by the Registrar4.
1 Re Azhar Azizan Harun (as the absolute representative of Eleanor Dulcie Robinson) [1998] 7 MLJ 89, [1999] 2 AMR
1596 where it was held that the provisions of the repealed RHC O 71 r 26 (now RC O 71 r 26) which relate to the issuance
of a limited grant to an attorney to administer the estate of the deceased, were not relevant to the case which concerned a
petition for the resealing of the grant of probate.
2 RC O 71 r 26. See Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will annexed, of the
Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90.
3 See [330.243], [330.244].
Page 339
Representation/ E. General Grants of Administration/ (vii) Estates Exempt from Necessity for Grant
(vii) Estates Exempt from Necessity for Grant
[330.426]
Summary administration of movable property by Corporation
Whenever any person dies, whether testate or intestate1, leaving movable property2 in Malaysia and the
Corporation3 is satisfied after such investigation as it deems sufficient:
(1) that the total value of the property without deduction for debts, but not including the value of
any property which the deceased possessed or was entitled to as trustee and not
beneficially, does not exceed RM600,000; and
(2) that no person is entitled to apply to the court for grant of probate of will or no petition for
letters of administration is pending,
the Corporation must, upon the application of a person making a claim on the property and if it thinks fit
to do so, by writing declare that it undertakes to administer the property, and thereupon the Corporation
is empowered to administer the property as though letters of administration of the estate of the deceased
person had been granted to it, and its receipt is a sufficient discharge to any person who pays any
money or delivers any property to it; and notice of every such declaration must be filed in the proper
registry of the court4.
When the Corporation is satisfied that the value of any movable property does not exceed RM50,000, it
may direct that the same or any part of the property be delivered to any person or persons5 on being
satisfied as to the title of the claimant and value of the property by the oath or affirmation6 of the claimant
or by such other evidence as it may require and it may in its discretion take such security as it thinks
proper for the due administration of the property or the protection of the rights of any other person7.
If the property is of no appreciable value or its value, in the opinion of the Corporation, is so small as to
render impracticable the sale of it, it may direct such property to be destroyed or otherwise disposed of
as it thinks fit8.
1 See [330.416] note 2.
2 See [330.414] note 4.
3 See [330.247].
4 Public Trust Corporation Act 1995 (Act 532) s 17(1).
5 The right of any person to recover the whole or any part of the property from the person to whom it may have been
delivered is not affected: Public Trust Corporation Act 1995 s 17(2)(b).
7 Public Trust Corporation Act 1995 s 17(2)(a).
[330.427]
Page 340
Insurance
Monies due from an insurance effected on the deceased's life by the deceased's spouse and expressed
to be for the benefit of another person, whether as a nominee or as an assignee, creates a trust1 so that
the money payable does not form part of the deceased insured's estate2. Whether the personal
representative3 has the exclusive right to receive and give a discharge for monies due under an
insurance policy depends on the test whether the monies from the insurance policy or any other asset
becomes part of the aggregate estate of the deceased or not, depends on whether the deceased had
any right to the said asset4. The terms of the contract of insurance have to be scrutinised to determine
this test5.
1 Eng Li Cheng Dolly v Lim Yeo Hua [1995] 3 SLR 363 where it was held that the fund generated by the policy taken out
during marriage with the object of creating a fund was an immediate trust in favour of the wife and which trust was not
defeated by the subsequent divorce. As to life insurance generally see [490] INSURANCE (2011 Reissue).
2 Pursuant to the Civil Law Act 1956 (Act 67) s 23(1), a policy of insurance can never form part of the assets of the
deceased. The fact that the policy is vested in the trustee for the benefit of the beneficiary does not mean that upon the
death of the insured the money is automatically held on trust by the appellant for the benefit of the beneficiary as bare
trustee: see Malaysian Assurance Alliance Bhd v Anthony Kulanthai Marie Joseph (suing as a representative of the estate
of Martin Raj a/l Anthony Selvaraj, decd) [2010] 4 MLJ 749, FC . See Re Man bin Mihat (decd) [1965] 2 MLJ 1; Re
Kathiravelu (decd) [1973] 2 MLJ 165; Re Bahadun bin Haji Hassan (decd) [1974] 1 MLJ 14; Kishabai v Jaikishan [1981] 2
MLJ 289; Manonmani v Great Eastern Life Assurance Co Ltd [1991] 1 MLJ 364; Rachael Mei Ling Ong v Dato' Bruno
Henry Almeida [1998] 3 CLJ 71, [1998] 1 AMR 600. See also the Insurance Act 1963 (Act 89) (repealed) s 44.
3 See [330.242].
4 Chua Chee Chor v Chua Kim Yong [1960] MLJ 127, CA , where it was held that when the court grants letters of
administration, it does not go into questions of title as to the assets alleged to be the property of the deceased at the time
of his death; cf Kishabai v Jaikishan [1981] 2 MLJ 289 where it was held that in the absence of the revocation of the trust
created on the deceased's life policy, the assignee of the life policy did not have the benefit of the said policy.
5 Re Yeo Hock Hoe's Policy [1938] MLJ 33 where the court held that the deceased had not made a complete and absolute
gift to his wife as he never parted with the right to dispose of the policy monies and as he died possessed of such right it
must pass to his personal representatives for the benefit of the creditors.
[330.428]
Employees Provident Fund
Monies in credit in the Employees Provident Fund cannot constitute a testamentary disposition and be
included as part of the assets of the deceased, if there is a beneficiary nominated by the deceased for
the same1.
1 Rachael Mei Ling Ong v Dato' Bruno Henry Almeida [1998] 3 CLJ 71, [1998] 1 AMR 600. See the Employees Provident
Fund Regulations 2001 (PU (A) 409/2001) reg 9.
Page 341
Representation/ E. General Grants of Administration/ (viii) Application for Grant
(viii) Application for Grant
[330.429]
Time for issuing grant
Except with the leave of the Registrar, no grant of probate or of administration with the will annexed may
be issued within 7 days of the death of the deceased and no grant of administration may be issued within
14 days of the death of the deceased1. The Registrar must not allow any grant to issue until all inquiries
which he may see fit to make have been answered to his satisfaction2.
1 RC O 71 r 4(3).
2 RC O 71 r 4(1). See also [330.354].
[330.430]
Evidence
In addition to evidence of death1, the person applying for letters of administration must apply by
originating summons supported by an affidavit2 and any other information and/or documents as the
Registrar may require3.
The administrator must state in his oath that he will faithfully administer the estate and effects of the
deceased by paying his debts so far as the deceased's estate and effects will extend, and distributing the
residue of the deceased's estate and effects according to law, and that he will render a just and true
account4 of his administration when he will lawfully be required5.
1 See [330.355]-[330.357].
2 Ie in RC App A Forms 6 and 159: RC O 71 r 5(1). See also [330.341].
3 RC O 71 r 5(1).
4 A-G v Ching Kwong Yew (executors of the estate of Ching Kwong Kuen) [1993] 2 SLR 225, CA (Sing) . As to the duty to
keep accounts see [330.727].
5 See RC App A Form 161.

Page 342
Representation/ F. Special and Limited Grants of Administration/ (i) Administration with Will Annexed
F. SPECIAL AND LIMITED GRANTS OF ADMINISTRATION
(i) Administration with Will Annexed
[330.431]
When grant will be made with will annexed
Administration1 with will annexed is granted in the following cases where:
(1) no executor is appointed by will2;

(2) the executor or all the executors appointed3 by the will are legally incapable of acting4 as
such or have renounced5;
(3) no executor survives the testator6;
(4) all the executors die before obtaining probate7 or before having administered all the estate
of the deceased8; or
(5) the executors appointed by any will do not appear and extract probate9.
Where a sole and last surviving executor dies intestate10 without having fully administered,
administration is granted with the will annexed de bonis non11.
2 Probate and Administration Act 1959 (Act 97) s 16(a). For the meaning of 'will' and 'executor' see [330.242] note 4.
4 As to persons eligible for the appointment of executors see [330.254] and following.
5 Probate and Administration Act 1959 s 16(b). As to renunciation see [330.262] and following.
6 Probate and Administration Act 1959 s 16(c).
8 Probate and Administration Act 1959 s 16(d).
9 Probate and Administration Act 1959 s 16(e).
11 See [330.289], [330.291]. See also [330.435]; Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with
the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90; HSBC (M) Trustee Bhd v Kong Kim
Hoh [1999] 3 MLJ 383.
[330.432]
Absent persons
Letters of administration1 with the will2 annexed may be granted to a duly authorised attorney3 of:
Page 343
(1) an executor appointed4 by the will and that executor is absent from Malaysia and there is
no other executor within Malaysia willing to act5; or
(2) any person to whom letters of administration with the will annexed might be granted due to
the failure of executors6 and that person is absent from Malaysia7.
The attorney must file a certified true copy of the power of attorney with the originating summons or
prove that he has deposited it or a certified copy of it in the Registry of the High Court as required
statutorily8. Where there is more than one executor, administration may not be granted to the absent
executor's attorney without notice to the other executors unless such notice is dispensed with by the
Registrar9.
2 For the meaning of 'will' see [330.242] note 4. The effect of the grant of probate and letters of administration with the will
annexed would be conclusive evidence of the due execution and validity of the will for so long as the grant remains
unrevoked: see Tan Chou Me (sebagai Penguasa Pesaka Mek Ke Ek a/p Eh Lai-si mati) v Eh Tiang a/l Eh Chan (as
representative of the estate of Eh Pit s/o Chau Sook, decd), [2000] MLJU 361.
3 See Scan Electronics (S) Pte Ltd v Syed Ali Redha Alsagoff [1997] 3 SLR 13.
4 As to the appointment of executors see [330.248] and following. For the meaning of 'executor' see [330.242] note 4.
5 Probate and Administration Act 1959 (Act 97) s 29(a). See also RC O 71 r 26. Such letters of administration with the will
annexed will be limited until the executor obtains probate for himself, and in the meantime to any purpose to which the
attorney's authority is limited: s 26.
6 As to the failure of executors see the Probate and Administration Act 1959 s 16 and [330.431]; as to persons having prior
rights to administer see [330.402].
7 Probate and Administration Act 1959 s 29(b). Such letters of administration with the will annexed will be limited until that
person obtains probate for himself, and in the meantime to any purpose to which the attorney's authority is limited: s 29(b).
8 Ie in accordance with the Powers of Attorney Act 1949 (Act 424) s 4: RC O 71 r 26 proviso. See Re Ramanathan s/o AR
A Nachiappan (Administrator De Bonis Non with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd)
[1998] 2 MLJ 90; Practice Note No 6 of 1950.
[330.433]
Persons to whom grant made with will annexed
The persons entitled to a grant of letters of administration1 with the will2 annexed are determined in
accordance with the following priority:
(1) a universal or residuary legatee;

(2) a personal representative3 of a deceased universal or residuary legatee;
(3) such person or persons, being beneficiaries under the will, as would have been entitled to a
grant of letters of administration if the deceased had died intestate4;
(4) a legatee having a beneficial interest; and
(5) a creditor5 of the deceased6.
3 See [330.242].
Page 344
6 Probate and Administration Act 1959 (Act 97) s 16 proviso (i)-(v). See [330.402].
[330.434]
Necessity for second grant
Where a person entitled to a grant resides outside Malaysia, administration may be granted to his
lawfully constituted attorney1 for his use and benefit limited until such person obtains a second grant or
in such other way as the Registrar may direct2. However, where the person so entitled is an executor3,
administration may not be granted to his attorney without notice to the other executors, if any, unless
such notice is dispensed with by the Registrar4.
Letters of administration with the will annexed5 so granted to the attorney6 of the absent person will be
limited until that person obtains a grant for himself, and in the meantime, to any purpose to which the
attorney's authority is limited7.
Where a person entitled to letters of administration in case of intestacy8 is absent from Malaysia, and no
person equally entitled to act is willing to act, letters of administration may be granted to an authorised
attorney of the absent person, limited until he obtains a grant himself9.
1 See [330.432].
2 RC O 71 r 26. See Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will annexed, of the
3 See [330.243], [330.244].
5 As to when a grant will be made with the will annexed see [330.431].
7 See the Probate and Administration Act 1959 (Act 97) s 29(a), (b) and [330.432].
8 See [330.402].
9 Probate and Administration Act 1959 s 29(c).

Page 345
Representation/ F. Special and Limited Grants of Administration/ (ii) Unadministered Estate
(ii) Unadministered Estate
[330.435]
Grant de bonis non
Where a sole or last surviving executor1 dies intestate without having fully administered the testator's
estate, the deceased executor's administrator2 does not become the representative of the original
testator3, and it is accordingly necessary to appoint an administrator to administer the estate of the
original testator left unadministered. This is a grant of administration with the will annexed for
unadministered estate4.
A grant for the administration of unadministered estate is also made where the deceased dies intestate
and the original administrator did not complete the administration of the estate and in such case the
chain of representation must be continued by the appointment of an administrator de bonis non5.
Where an executor has acted and dies intestate without having obtained probate, the grant of
administration made to the testator's estate is a simple grant with the will annexed and not a grant de
bonis non6.
1 See [330.243], [330.244].
2 See [330.245].
3 As to the chain of representation see [330.289], [330.291].
4 See the Probate and Administration Act 1959 (Act 97) s 14(2). See In the Estate of Ngau Ken Lock (decd) (Ngau Voon
Kiat, petitioner) [2002] 4 MLJ 74.
5 The phrase 'unadministered estate' is more appropriate if used to describe 'de bonis non': see Syed Ali Redha Alsagoff
(administrator of the estate of Mohamed bin Ali (decd)) v Syed Salim Alhadad [1996] 3 SLR 410.
6 See the Probate and Administration Act 1959 s 12(1). See also Re Ramanathan s/o AR A Nachiappan (Administrator De
Bonis Non with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90, where the court
held that letters of administration with the will annexed should be granted and not a grant de bonis non.'The term de bonis
non comes from the full Latin title of de bonis non administratis which means of goods not administered . If a person to
whom a grant of representation has been made has died leaving part or all of the estate of the deceased unadministered
then, unless there is a chain of executorship, a grant in respect of the unadministered estate may be made to a new
personal representative to enable the administration to be completed. Such a grant is described as de bonis non ': In the
Estate of Ngau Ken Lock (decd) (Ngau Voon Kiat, petitioner) [2002] 4 MLJ 74 referring to Tristram and Coote's Probate
Practice (28th Edn) p 432 and Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will annexed,
of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90 at 99.
[330.436]
Rights of preference observed
In making a grant of unadministered estate1, the court has regard to the same rights of preference by
which an original grant is regulated2, and follows the general practice of making the grant to those who
have the greatest interest3.
Page 346
1 See [330.435].
3 As to the discretion of the court see [330.310]. See also Tam v Wateh [1963] MLJ 141; Re Tang Pui Sim (decd) [1967] 2
MLJ 96, FC (Sing) . Grants de bonis non may be limited in the same way as other grants, including a limitation as to
property. The Probate and Administration Act 1959 (Act 97) ss 23 and 24 set out the relevant circumstances where such a
limitation may be applicable in the case of an intestacy: see HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383.
[330.437]
Grant where deceased died intestate
Where on the death or renunciation1 of an administrator2 on intestacy a grant of de bonis non3 becomes
necessary because part of the estate is unadministered, the court is guided by the same rules regulating
original grants4. Where there is a life interest or an infant beneficiary under the intestacy, the grant must
be granted to not less than two grantees5.
1 As to renunciation of right to grant see [330.405].
2 See [330.245].
3 See [330.435].
4 Probate and Administration Act 1959 (Act 97) s 14(2). For the meaning of 'Court' see [330.256] note 3. As to the
discretion of the court see [330.310].
5 See the Probate and Administration Act 1959 s 4(2) and [330.406].
Page 347
Representation/ F. Special and Limited Grants of Administration/ (iii) Administration during Minority of Person
Entitled
(iii) Administration during Minority of Person Entitled
[330.438]
Grant during minority
Where a person to whom a grant would otherwise be made is an infant1, administration for his use and
benefit until he attains the age of majority2 is, granted:
(1) to both parents of the infant jointly or to the statutory or testamentary guardian of the infant
or to any guardian appointed by a court of competent jurisdiction3; or
(2) if there is no such guardian able and willing to act and the infant has attained the age of 16
years, to any next-of-kin nominated by the infant or where the infant is a married woman, to
any such next-of-kin or to her husband if nominated by her4.
Notwithstanding the above provision, administration for the use and benefit of the infant until he attains
the age of majority may be granted to any person assigned as guardian by order of the Registrar, in
default of, or jointly with, or to the exclusion of, any such person as is mentioned in heads (1) and (2)
above; and such an order may be made on application by the intended guardian, who will file an affidavit
in support of the application and, if required by the Registrar, an affidavit of fitness sworn by the
responsible person5.
Where an infant who is sole executor6 has no interest in the residuary estate of the deceased,
administration for the use and benefit of the infant until he attains the age of majority is, unless the
Registrar otherwise directs, granted to the person entitled to the residuary estate7.
No representation8 may be granted to a person while he is a minor, but where a minor would, but for his
minority, be entitled to representation, letters of administration with or without the will annexed9 may,
subject to the restriction on the maximum number of administrators10, be granted to the guardian of the
person and property11 of the minor, or to such person as the court12 thinks fit, limited until the minor
obtains a grant himself13.
1 As to minors see [330.255].
2 See [330.255] note 2.
3 RC O 71 r 27(1)(a).
4 RC O 71 r 27(1)(b). Any person so nominated may represent any other infant whose next-of-kin he is, being an infant
below the age of 16 years entitled in the same degree as the infant who made the nomination: O 71 r 27(2).
5 RC O 71 r 27(3). As to oaths and affirmations see CIVIL PROCEDURE (2014 Reissue) [190.7-004].
6 See [330.243], [330.244].
7 RC O 71 r 27(5).
9 As to when a grant will be made with the will annexed see [330.431]. For the meaning of 'administration' see [330.244]
Page 348
note 8.
10 See the Probate and Administration Act 1959 (Act 97) s 4(1) and [330.406]. As to administrators see [330.245].
13 Probate and Administration Act 1959 s 20(1). Where there are two or more minor executors or persons entitled to a
grant, any grant made to the guardian of the person and property of a minor executor will be limited until one or other of
them obtains a grant: s 20(2).
[330.439]
Necessity for two administrators
Where two administrators1 are necessary because there is an infant beneficiary or life interest2 and there
is only one person able and willing to take the grant during the minority of the person entitled to the
grant3, administration may, unless the Registrar otherwise directs, be granted to such person jointly with
any other person nominated by him as a fit and proper person to take the grant4.
Where a minor is sole executor, the appointment of two administrators is not necessary unless a
beneficial life or minority interest arises under the will5. If such a minor has no interest in the residuary
estate, the grant must be made, unless Registrar otherwise directs, to the person entitled to the
residuary estate, for the use and benefit of the minor until he attains the age of majority6.
1 See [330.245].
2 See the Probate and Administration Act 1959 (Act 97) s 4(2) and [330.406].
3 See [330.438].
4 RC O 71 r 27(4).
5 See the Probate and Administration Act 1959 s 4(3).
6 RC O 71 r 27(5); see Re Lua Kin Suai [1998] 7 MLJ 258.
[330.440]
Co-executor a minor
Where one of two or more executors1 is an infant, probate may be granted to the other executor or
executors not under disability, with power reserved of making the like grant to the infant on his attaining
the age of majority2, and administration for the use and benefit of the infant until he attains the age of
majority3 may be granted if and only if the executors who are not under disability renounce4 or, on being
cited to accept or refuse a grant fail to make an effective application for the grant5.
An infant executor's right to probate on attaining the age of majority may not be renounced by any
person on his behalf6.
1 See [330.243], [330.244].
2 As to the age of majority see [330.255] note 2.
3 See the Probate and Administration Act 1959 (Act 97) s 20(1); RC O 71 r 27; [330.438].
Page 349
4 As to renunciation see [330.262] and following.
5 RC O 71 r 28(1).
6 RC O 71 r 28(2).
[330.441]
Guardianship of minors
In relation to the custody or upbringing of an infant or the administration of any property belonging to or
held in trust for an infant or the application of the income of any such property, a mother will have the
same rights and authority as the law allows to a father, and the rights and authority of mother and father
will be equal1. Where an infant has no father living, the mother of the infant is the guardian of his person
and property2, although the court3 has the discretion to appoint some other person to be the guardian of
the infant's person and property, or either of them to act jointly with the mother4.
If both parents of the infant are dead, the testamentary guardian (if any) appointed by the last surviving
parent will, subject to the court's discretion to remove any guardian5, be the guardian of his person and
property6. If both parents of the infant have died without appointing a testamentary guardian, the court or
a judge sitting in chambers may, at the instance of any Magistrate, kathi, pengulu, police officer not
below the rank of sergeant, any person having custody of such infant, or any person with the powers of a
Protector7, appoint a guardian of the infant's person and property or either of them8.
1 See the Guardianship of Infants Act 1961 (Act 351) s 5. This is subject to the court's discretion to remove any guardian:
see s 10.
2 Guardianship of Infants Act 1961 s 6.
3 Ie the High Court or a judge when sitting in open court: Guardianship of Infants Act 1961 s 2(1).
4 Guardianship of Infants Act 1961 s 6 proviso.
5 See the Guardianship of Infants Act 1961 s 10.
7 'Protector' means:
(i) the Director General of Social Welfare;

(ii) the Deputy Director General of Social Welfare;
(iii) a Divisional Director of Social Welfare, Department of Social Welfare;
(iv) the State Director of Social Welfare of each of the States, and includes any Social Welfare Officer
appointed under any law regulating the appointment of a Protector: Guardianship of Infants Act 1961 s
2(1).
See also [620] POLICE (2013 Reissue).
[330.442]
Guardian as next friend
Where an infant has a statutory guardian or a testamentary guardian who is qualified to be his next friend
by virtue of the fact that he is competent and willing to act as such and has no interest in the action in
question adverse to that of the infant1, that guardian is entitled to be next friend of the infant in a probate
action2. Where an infant has attained the age of 16 years and there is no statutory or testamentary
Page 350
guardian qualified to be his next friend3, the infant may appoint as his next friend a person who is
qualified to be such friend and who is one of his next-of-kin or, where the infant is a married woman, one
of her next-of-kin or her husband4.
1 See RC O 76 r 4(8).
3 Ie qualified by virtue that he is competent and willing to act as next friend and has no interest in the action in question
adverse to that of the infant: see RC O 76 r 4(3).
4 RC O 76 r 4(4).
[330.443]
Limit of grant
The administration during minority determines upon the coming of age of the minor or of any of several
minors for whose use and benefit the grant was made1. A fresh grant2 is necessary on the coming of age
of the minor. If all the minors for the use and benefit of whom the grant has been made die before
reaching the age of majority3, the grant ceases, and a grant of administration de bonis non4 becomes
necessary. The administration does not determine upon the death of one of several minors, but if the
guardian dies during their minority, a second grant becomes necessary.
2 See the Probate and Administration Act 1959 s 28.
4 See [330.435].
[330.444]
Administrator's liability to account
On his coming of age the minor is entitled to call for an account1 from the administrator2, even though his
administration may previously have been revoked3 and his successor in office may have released him
from the liability. If the minor renounces4 on coming of age, the person who is then appointed
administrator is in a position to call for an account5.
1 See [330.363].
2 See [330.245].
5 See Woon Mooi Hua v Tan Kay Swee [1971] 1 MLJ 169.
Page 351
Representation/ F. Special and Limited Grants of Administration/ (iv) Administration during Absence of
Person Entitled
(iv) Administration during Absence of Person Entitled
[330.445]
Grant to attorneys of absent persons
Where a person entitled to a grant resides outside Malaysia, administration may be granted to his
lawfully constituted attorney1 for his use and benefit, limited until such person obtains a grant or in such
other way as the Registrar may direct2. Where the person so entitled is an executor3, administration may
not be granted to his attorney without notice to the other executors, if any, unless such notice is
dispensed with by the Registrar4.
2 RC O 71 r 26. See [330.294], [330.432]. See also Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non
with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90.
3 See [330.243], [330.244].
[330.446]
Requirements for grant to attorney administrators
A grant cannot be made to a single person1 as attorney if there is a minority, or if a life interest arises
under the will or intestacy. In such cases, two attorneys or a trust corporation with or without an
individual, must be appointed to obtain the grant2.
Administration may be granted to a duly authorised attorney of a person who would be entitled to a grant
but is absent from Malaysia, limited until that person obtains probate3, letters of administration4 or letters
of administration with will annexed5 for himself, and in the meantime to any purpose to which the
attorney's authority is limited6.
If the grant is made to the attorneys of one only of several executors it is limited until the principal or any
one of the other executors applies for probate7. On the death of the principal, or on any other event
which would operate as a revocation of the power of attorney8, such a grant ceases to be effective9.
1 See [330.439].
5 As to when a grant will be made with the will annexed see [330.431]. For the meaning of 'will' see [330.242] note 4.
Page 352
6 See the Probate and Administration Act 1959 s 29 and [330.432]. See also Re Ramanathan s/o AR A Nachiappan
7 See [330.445].
9 See the Powers of Attorney Act 1949 (Act 424) ss 5-8.
[330.447]
Grant to consular officer as if to attorney
Where any person who is a national or citizen of a State to which the Consular Relations (Vienna
Convention) Act 19991 applies is:
(1) entitled to any money or other property in Malaysia forming part of the estate of a deceased
person, or to receive payment in the Malaysia of any money becoming due on the death of
a deceased person; or
(2) among the persons to whom any money or other property of a deceased person may under
any written law in force in Malaysia or in any constituent State in Malaysia be paid or
delivered without grant of probate or other proof of title,
then, if such national or citizen is not resident in Malaysia, a consular officer of such State will have the
like right and power to receive and give a valid discharge for any such money or property as if he were
duly authorised by power of attorney to act for him in that behalf2.
Provided that no person may be authorised or required by the aforesaid provision to pay or deliver any
money or property to a consular officer if it is within his knowledge that any other person in Malaysia has
been expressly authorised to receive that money or property on behalf of such national or citizen3.
Notwithstanding anything to the contrary in any written law in force in Malaysia or in any constituent
State in Malaysia, it will be lawful for letters of administration of an estate to be granted to a consular
officer alone, and, when the existing personal representative is a consular officer, it will not be
necessary, in any case, for any additional personal representative to be appointed4. In addition, sureties
are not required to any administration bond given by such officer5.
The grant may be made to the officer by his official title and to his successors in office; and in such a
case all the estate, rights, duties and liabilities of the administrator6 are vested in and imposed upon the
person for the time being holding the office. No fresh grant can by required by reason only of the death
or vacation of office of the person to whom the grant is made or in whom it is vested, but this provision
does not affect any limitation contained in the grant, or any power of the court to revoke the grant7.
1 See the Consular Relations (Vienna Convention) Act 1999 (Act 595) s 4.
2 Consular Relations (Vienna Convention) Act 1999 s 10(2)(a), (b) .
3 Consular Relations (Vienna Convention) Act 1999 s 10(2) proviso.
4 Consular Relations (Vienna Convention) Act 1999 s 10(3).
5 Consular Relations (Vienna Convention) Act 1999 s 10(4). As to security for due administration see [330.468] and
following
6 As to who is an administrator see [330.245]. As to the liabilities see [330.707] and following.
7 Consular Relations (Vienna Convention) Act 1999 s 10(6).

Page 353
[330.448]
Attorney's position
As regards the claims of third parties, an attorney administrator1 is as fully an administrator as if he had
obtained the grant in his own right, and is liable to be sued by the parties beneficially interested in the
estate.
1 As to grants to attorneys of absent persons see the Probate and Administration Act 1959 (Act 97) s 29; [330.432];
[330.445]. See also Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will annexed, of the
Page 354
Representation/ F. Special and Limited Grants of Administration/ (v) Administration during Incapacity of
Person Entitled
(v) Administration during Incapacity of Person Entitled
[330.449]
Grant during incapacity
Where a Registrar is satisfied that a person entitled to a grant is by reason of unsoundness of mind1 or
physical incapacity incapable of managing himself or his affairs, administration for his use and benefit,
limited during his incapacity or in such other way as the Registrar may direct, may be granted2.
Unless the Registrar may otherwise direct, no grant is made unless all persons entitled in the same
degree as the person incapable have been cleared off3. In the case of physical incapacity, notice of
intended application for a grant must, unless the Registrar otherwise directs, be given to the person
alleged to be so incapable4.
1 See [330.256].
2 RC O 71 r 29(1); see [330.450].
3 RC O 71 r 29(2).
4 RC O 71 r 29(3).
[330.450]
Person to whom the grant is made
Where a person entitled to a grant is of unsoundness of mind, the grant may be made to the person
authorised by the High Court1. Where there is no person so authorised, or in the case of physical
incapacity, if the person incapable is entitled as executor2, the grant may be made to the person entitled
to the residuary estate of the deceased3. If the person incapable is entitled otherwise than as an
executor, the grant may be made to the person who would be entitled to a grant in respect of his estate if
he had died intestate4, or to such person as the Registrar may by order direct5.
1 RC O 71 r 29(1)(a). See also [330.256].
3 RC O 71 r 29(1)(b)(i).
4 RC O 71 r 29(1)(b)(ii). As to the persons having prior rights to administer see [330.402].
5 RC O 71 r 29(1).
Page 355
[330.451]
Grant to stranger or creditor
A grant of letters of administration will not be made to a person who has no interest in the estate1.
However, if all persons interested in the estate of an intestate2 renounce3 and consent, the court will at
its discretion4 make a grant to a creditor5 for the use and benefit of the mentally incapacitated person or
to a stranger for the like use, until the mentally incapacitated person becomes of sound mind and obtains
a grant to himself6.
1 See Re Wee Guan Ho (decd) [1940] MLJ 212; Re Tang Pui Sim (decd) [1967] 2 MLJ 96, FC (Sing) .
4 See RC O 71 r 29(1) and [330.449], [330.450].
5 See [330.417]-[330.419].
Page 356
Representation/ F. Special and Limited Grants of Administration/ (vi) Administration Pending Suit
(vi) Administration Pending Suit
[330.452]
Grant pendente lite
Pending any probate action1, letters of administration2 may be granted to such person as the court3 may
appoint4, limited5 so that the administrator6 is not empowered to distribute the estate7, and is subject to
such control by, and direction of, the court, as the court deems fit; and subject to that limitation the
administrator so appointed will have all the rights and powers of a general administrator8.
1 For the meaning of 'probate action' see [330.262] note 3.
4 See Ang Hoi Yin v Sim Sie Hau [1969] 2 MLJ 3 where it was argued that there was no necessity for the plaintiff to extract
letters of administration because of the unique circumstances of the case as the plaintiff was refused a general grant of
letters of administration and was appointed administratrix pendente lite by the court. See also Mohideen Batcha v Fatimah
Bee [1946] MLJ 10.
5 See the Probate and Administration Act 1959 (Act 97) s 23 and the Public Trust Corporation Act 1995 (Act 532) s 13,
where the Corporation (see [330.247], [330.415]) may be granted probate and letters of administration by the court on its
own application or on the application of any person. See also Mohideen Batcha v Fatimah Bee [1946] MLJ 10; Lily
Iskandar v Bonardy Leo [1983] 2 MLJ 96.
8 Probate and Administration Act 1959 s 19. See Amanah Raya Bhd (suing as administrator for the estate of Kantilal
Prabhulal Doshi, deceased) v Jigarlal Kantilal Doshi [2013] 7 MLJ 398. See also [330.244].
[330.453]
Exercise of jurisdiction
There must be a probate action1 actually pending in the High Court for it to make a grant pending suit2.
Proceedings on a caveat3 do not constitute an action.
1 For the meaning of 'probate action' see [330.262] note 3.
2 See [330.452].
3 As to caveats see [330.311] and following.
[330.454]
Page 357
Accounts
An administrator1 to whom a grant pending suit2 is made, must at the time when he begins proceedings
for taxation of his costs3, or at such other time as the Registrar may direct, produce at the Registry an
account (verified by affidavit) of the moneys and other property received or paid or otherwise dealt with
by him in his capacity as such an administrator4.
When a beneficiary in the estate of a deceased has transferred to the mortgagee the whole of his
interest in the estate, any right to account which he might otherwise have had against the executor5 can
only be enforced by the mortgagees and not by the beneficiary himself6.
2 See [330.452].
3 As to costs generally see [330.395]. See further CIVIL PROCEDURE (2014 Reissue) [190.12-001] and following.
4 RC O 72 r 20(2).
5 See [330.243], [330.244].
6 Ewe Keok Neoh v Ng Aun Thye [1934] MLJ 23, PC .

Page 358
Representation/ F. Special and Limited Grants of Administration/ (vii) Miscellaneous Limited Grants
(vii) Miscellaneous Limited Grants
[330.455]
Grants ad colligenda bona
A grant of letters of administration1 known as ad colligenda bona for getting in and preserving the assets
of a deceased person may be made by the court2 to any person whom the court thinks fit, or to the
Corporation3. Such grant is limited to the collection and preservation of the property of the deceased and
giving discharge of debts due to his estate, subject to the direction of the court; and the person so
appointed will have power to dispose of all assets of the estate4 of a wasting or perishable nature and
invest the proceeds of sale5.
3 See [330.247], [330.415].
5 Probate and Administration Act 1959 (Act 97) s 23; see HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383.
[330.456]
Grant where will is abroad or mislaid
A grant may be made in a case where the will of a testator is in a foreign country; or where there is
believed to have been a will which has been accidentally mislaid or lost, or where a will cannot be for
sufficient reason be produced. The grant is limited in time until the original will is admitted to probate1.
1 See the Probate and Administration Act 1959 (Act 97) s 25 and [330.332]. For the meaning of 'will' see [330.242] note 4.
As to the grant of letters of administration until the will is produced see s 18.
[330.457]
Court's general power to dispense with representatives
Where a person against whom an action would have lain has died but the cause of action survives, and
no grant of probate or administration has been made, the action may be brought against the deceased's
estate1. An action purporting to have been commenced against a person is treated, if he was dead at its
commencement, as having been commenced against his estate, whether or not a grant of probate or
administration was made before its commencement2.
Page 359
In any such action the plaintiff must, during the period of validity for service3 of the summons, apply to
the court for an order appointing a person to represent the estate for the purpose of the proceedings or, if
a grant has been made, for an order that the personal representative of the deceased be made a party to
the proceedings, and in either case for an order that the proceedings be carried on against the person
appointed or the personal representative as if he had been substituted for the estate4. The court may at
any stage of the proceedings and on such terms as it thinks just and either of its own motion or on
application, make any such order and allow any necessary amendments to be made and make such
other order as the court thinks necessary in order to ensure that all matters in dispute in the proceedings
may be effectually and completely determined and adjudicated upon5. Where no grant has been made,
any judgment or order given or made in the proceedings binds the estate to the same extent as it would
have been bound if a grant had been made and a personal representative of the deceased had been a
party to the proceedings6.
Where a party to an action dies but the cause of action survives, the action does not abate by reason of
the death7; and the court may order any person on whom the deceased party's interest or liability
devolves to be made a party in his place8.
Where in any proceedings it appears to the court that a deceased person was interested in the matter in
question in the proceedings and that he has no personal representative, the court may, on the
application of any party to the proceedings, proceed in the absence of a person representing the estate
of the deceased person or may by order appoint a person to represent that estate for the purposes of the
proceedings9. Before making such order, the court may require notice of the application for the order to
be given to such (if any) of the persons having an interest in the estate as it thinks fit10. Any such order,
and any subsequent judgment or order, binds the estate as if a personal representative had been a party
to the proceedings11.
1 RC O 15 r 6A(1). For these purposes an action brought against 'the personal representatives of AB deceased' is treated
as having been brought against his estate: O 15 r 6A(2). As to personal representatives see [330.242] and following. The
object of RC O 15 r 6A is to provide a remedy where there is no person in law who can be sued: see Kerajaan Malaysia v
Yong Siew Choon [2006] 1 MLJ 1, FC .
2 RC O 15 r 6A(3).
3 As to service see CIVIL PROCEDURE (2014 Reissue) [190.2-034] and following.
4 RC O 15 r 6A(4)(a). See Hasiah bt Mat lwn Johanariffin bin Din [2010] 7 MLJ 61 (no requirement in the Rules that an
application to appoint representatives needs to be served on each beneficiary); Poraviappan a/l Arunasalam Pillay (suing
as administrator of estate of the late Nadarajah a/l Sithambaram Pillai) v Periasamy a/l Sithambaram Pillai (on behalf of
personal representatives of the estate of Ponnamal a/p Ramasamy the deceased) [2015] 4 MLJ 285, FC; Personal
Representative of Salleh bin Saring (deceased) v Teo Tiam Teng [2016] 9 MLJ 54; Glen Lau Lian Seng v Personal
representative of Jeswant a/l Natarajan, deceased [2017] 11 MLJ 713, where it was held that consent was not an express
requirement of O 15 r 6A. Further, the real issue was not whether consent must be obtained before the court may grant an
order under O 15 r 6A(4)(a), which provides for a discretion of the court. It was axiomatic that any such discretion must be
exercised judicially and consent is a relevant consideration in determining whether or not the court ought to exercise its
discretion to grant the order sought. Therefore, the existence of consent was a very important element in determining the
order appointing the nominated representative. A next of kin would be entitled to refuse the appointment. In such
circumstances, there would have to be overwhelmingly compelling reasons for the court to appoint such a next of kin over
his or her objections.
5 RC O 15 r 6A(4)(b).
6 RC O 15 r 6A(7).
7 RC O 15 r 7(1).
8 RC O 15 r 7(2).
9 RC O 15 r 15(1). This provision is directed at the situation where after an action has commenced and it becomes
apparent that a deceased person who is neither the plaintiff nor the defendant and thus not a party to the litigation has an
interest in the subject matter of the litigation and therefore, his estate should be represented in the action: see Wong Moy
(administratrix of the estate of Theng Chee Khim (decd)) v Soo Ah Choy [1996] 3 SLR 398, CA (Sing) .
10 RC O 15 r 15(2).
Page 360
11 RC O 15 r 15(1).
[330.458]
Expiry of limited grant
When a limited grant1 has expired by effluxion of time or the happening of the event or contingency on
which it was limited, and there is still some part of the deceased's estate2 unadministered, letters of
administration3 may be granted to those persons to whom original grants might have been made4.

Page 361
Representation/ G. Resealing of Commonwealth Grants
G. RESEALING OF COMMONWEALTH GRANTS
[330.459]
General effect of resealing
The re-sealing in the Malaysian court of grants of probate or letters of administration issued in
Commonwealth countries1, is to give them the like force and effect and the same operation in Malaysia as
though they were originally granted here2.
1 See [330.460].
[330.460]
Commonwealth grants
Only grants issued in the Commonwealth1 countries or a British Court in a foreign country2 may be
re-sealed3 in Malaysia.
1 For the purposes of the Probate and Administration Act 1959 (Act 97) Pt IV (ss 51-58) 'the Commonwealth' is deemed to
include in addition any country which the Yang di-Pertuan Agong may by notification published in the Gazette direct to be
included: s 51.
2 'British Court in a foreign country' means any British Court having jurisdiction out of the Commonwealth in pursuance of an
Order of Her Britannic Majesty in Council, whether made under any Act of the Parliament of the United Kingdom or
otherwise: Probate and Administration Act 1959 s 51.
3 As to the effect of re-sealing see [330.459].
[330.461]
Powers of court to reseal
Where a Court of Probate1 in any part of the Commonwealth2 has granted probate or letters of
administration3 in respect of the estate of a deceased person, the probate or letters of administration so
granted, or a certified copy of it, sealed with the seal of the court granting the same, may on being
produced to and a copy of it deposited in the High Court, be sealed with the seal of the High Court, and
thereupon will be of the like force and effect, and have the same operation in Malaysia as if it were a grant
made by the High Court4.
In an application for re-sealing5 if it appears that the deceased was not at the time of his death domiciled
within the jurisdiction of the court from which the grant was issued, the seal will not be affixed unless the
grant is such as the High Court would have made6. Before the probate or letters of administration is
Page 362
sealed with the seal of the High Court, the court7 may require such evidence8, if any, as it thinks fit as to
the domicile of the deceased person9.
1 'Court of Probate' means any court or authority by whatever name designated, having jurisdiction in matters of probate:
Probate and Administration Act 1959 (Act 97) s 51.
2 See [330.460] note 1.
3 'Probate' and 'letters of administration' include confirmation in Scotland and any instrument having, in any part of the
Commonwealth, the same effect as that which, under the law of Malaysia, is given to probate or letters of administration
respectively: Probate and Administration Act 1959 s 51.
4 Probate and Administration Act 1959 s 52. See also s 53. For the meaning of 'probate' see also [330.244] note 7. For the
meaning of 'administration' see [330.244] note 8.
6 Probate and Administration Act 1959 s 52 proviso (a). See Issar Singh v Samund Singh [1941] 1 MLJ 28 where the
administrators who obtained letters of administration in the Colony of Singapore could not sue in the Federated Malay States
before the grant was re-sealed; Chung Kok Yeang v PP [1941] MLJ 163, CA , which held that where a foreign probate has
been resealed, the executor has all the rights and obligations of an executor as if the grant has been made here.
8 Re Mohamed Said Nabi (decd) [1965] 1 MLJ 121 which held that since the testator's declaration in his will as to domicile
was incorrect and inconsistent with the facts, no importance could be attached to it.
9 Probate and Administration Act 1959 s 52 proviso (b). See Re Azhar Azizan Harun (as the absolute representative of
Eleanor Dulcie Robinson) [1998] 7 MLJ 89, [1999] 2 AMR 1596 which held that a petition for resealing a grant of probate
ought to be filed in the executor's name and not that of the attorney notwithstanding the existence of the power of attorney.
[330.462]
Security required in respect of resealing
Before the re-sealing1 of letters of administration2, the administrator3 or his attorney must give security by
a bond in the prescribed form4 for the due administration of the estate5.
Where the deceased has carried on business or resided in Malaysia within 12 months of his death, the
court6 may, on the application of a creditor7 of the deceased or otherwise, before a grant of probate8 or
letters of administration is re-sealed require adequate security to be given for the payment of debts due to
creditors residing in Malaysia9.
2 See [330.461] note 3; [330.244] note 8.
4 Ie RC App A Form 162: see RC O 71 r 34 and [330.468].
5 Probate and Administration Act 1959 (Act 97) s 55. For the meaning of 'estate' see [330.242] note 3.
7 See [330.419].
8 See [330.461] note 3; [330.244] note 7.
9 Probate and Administration Act 1959 s 56(1). See Ngui Mui Khin v Gillespie Bros & Co Ltd [1980] 2 MLJ 9, FC , which
held that the words 'carry on business' denote something of a permanent character, not merely an isolated transaction and
that a business is carried on only where there is some degree of management or control.
Page 363
[330.463]
Security for creditors in Malaysia
Where the deceased has carried on business or resided in Malaysia within 12 months of his death, the
court1 may, on the application of a creditor2 of the deceased or otherwise, before a grant of probate3 or
letters of administration4 is re-sealed5 require adequate security to be given for the payment of debts due
to creditors residing in Malaysia6.
Any such creditor may give notice in writing to the Registrar, requiring that he be notified of any application
for the sealing of a grant of probate; and no such grant will be sealed before the expiration of seven days
after service on the creditor of a notice in writing of an application for sealing7.
2 See [330.419].
3 See [330.461] note 3; [330.244] note 7.
4 See [330.461] note 3; [330.244] note 8.
[330.464]
Notice of sealing
Notice of the sealing1 of a grant granted out of Malaysia2 will be sent forthwith by the Registrar to the court
from which the grant is issued3.
2 See [330.460].
[330.465]
Notice of revocation
When notice has been received by the court1 of the re-sealing2 of a grant issued in Malaysia, notice of any
revocation3 or alteration of any such grant will be sent forthwith by the Registrar to the court so re-sealing
the grant4.

Page 364

Page 365
Representation/ H. Foreign Domicile Grants
H. FOREIGN DOMICILE GRANTS
[330.466]
Right to grant
Where the deceased dies domiciled outside Malaysia1, an application may be made to the Registrar for an
order for a grant to: (1) the person entrusted with the administration of the estate by the court having
jurisdiction at the place where the deceased died domiciled2; (2) the person entitled to administer the
estate by the law of the place where the deceased died domiciled3; (3) if there is no such person as stated
in heads (1) and (2) above or if, in the Registrar's opinion, the circumstances so require, to such person as
he may direct4; or (4) if, because of a minority or life interest5, a grant is required to be made to, or if the
Registrar in its discretion considers that a grant should be made to, not less than two administrators6, to
such person as the Registrar may direct jointly with any such person as is mentioned in heads (1) and (2)
or with any other person7. Where there is no such application, and if the whole of the estate in Malaysia
consists of immovable property, a grant limited to such property may be made in accordance with the law
which would have been applicable if the deceased had died domiciled in Malaysia8.
1 See [330.339].
2 RC O 71 r 25(a).
3 RC O 71 r 25(b).
4 RC O 71 r 25(c).
6 See [330.245].
7 RC O 71 r 25(d).
8 RC O 71 r 25 proviso (B).
[330.467]
Procedure to obtain grant
Where the deceased died domiciled outside Malaysia1, the originating summons2 must state where the
deceased died domiciled3. In relation to evidence of foreign law4 an affidavit from any person who
practises, or has practised, as a barrister or advocate in that country and who is conversant with its law
may be accepted by the Registrar unless the deponent is a person claiming to be entitled to the grant or
his attorney, or is the spouse of any such person or attorney5. However, the Registrar may in special
circumstances accept the affidavit of any other person who does not possess the such qualifications, if the
Registrar is satisfied that by reason of such person's official position or otherwise he has knowledge of the
law of the country in question6.
1 See [330.339].
Page 366
2 The originating summons supported by affidavit must be verified by oath: see RC O 71 r 5(1). As to oaths and affirmations
see CIVIL PROCEDURE (2014 Reissue) [190.7-004].
3 RC O 71 r 5(3).
4 See [330.325].
5 RC O 71 r 16.
Page 367
Representation/ I. Security for Due Administration
I. SECURITY FOR DUE ADMINISTRATION
[330.468]
Administration bond
Unless the court1 in any particular case otherwise orders, in the case of administrations2, whether with or
without will annexed3, the person to whom the grant is made4 or on whose behalf it is sealed must give
security5 for the due administration of the estate6. No security is required where:
(1) the gross value of the estate does not exceed RM50,0007;
(2) a trust corporation (including Amanah Raya Berhad) has obtained administration8;
(3) the deceased has left behind no assets9 but only a chose in action10 (for example, a right to
sue for damages as a result of a motor accident in which the deceased was killed);
(4) the administrator is entitled to the whole of the estate after payment of the debts11; or
(5) the court dispenses with the need for an administration bond in the case in question12.
2 See [330.244] note 8.
3 As to when a grant is made with the will annexed see [330.431]. For the meaning of 'will' see [330.242] note 4.
4 As to the persons with prior rights to administer see [330.402].
5 The security is ordinarily by bond in the prescribed form (ie in RC App A Form 162: see RC O 71 r 34(1)). Subject to
exceptions (see text) and unless the Registrar otherwise directs, there must be two sureties (who must be residents in
Malaysia unless the Registrar otherwise directs: see O 71 r 34(5)) to every administration bond: O 71 r 34(2). They must
have assets in Malaysia and the total value of the unencumbered assets when taken together must not be less than the
value of the estate in question. See also Practice Notes No 2, No 3 of 1947 and No 1 of 1986.
6 Probate and Administration Act 1959 s 35(1)(a). For the meaning of 'estate' see [330.242] note 3.An executor being the
person appointed by the testator to execute the will is not required to give a bond, to provide sureties or to obtain leave of
the court for the due performance of his duties: see Re Lee Peng San (decd), Lai Yong Tiam v Yong Yun Chow [1970] 1
MLJ 93. As to the appointment of executors see [330.248] and following.
7 Probate and Administration Act 1959 s 35(1)(b).
8 Probate and Administration Act 1959 s 35(3). As to grants to trust corporations see [330.413]-[330.416]. See also TRUSTS
(2015 Reissue) [310.154]-[310.158]. See further RC O 71 r 34(3) which provides that no surety is required on an application
for a grant of administration: (1) by a trust corporation whether alone or jointly with an individual; (2) by a servant of the
Government acting in his official capacity; (3) where the gross value of the estate of the deceased does not exceed
RM50,000; or (4) where the deceased left no estate.
9 RC O 71 r 34(3)(d); see note 8 above. In Re Tan Ghee Kooi (decd), Khaw Phaik Guat & Tan Chee Poh petitioners [1958]
MLJ 1 as all the assets were personal assets, the court did not consider that sufficient reason had been shown for the
dispensation of sureties.
10 See Re Abdul Salam (decd), Abdul Razak v Kasi Mohamed Shirazil Anwar [1938] MLJ 83 where a residuary legatee's
interest in an undivided residue of an estate is a chose in action; Re Hee Chun Meng [1989] 2 MLJ 310; Husli bin Mok v
Probate Officer, Miri [1996] 5 MLJ 420 where it was held that the right to sue, being a chose in action, is an asset.
11 Probate and Administration Act 1959 s 35(4). For the meaning of 'administrator' see [330.242] note 5.
12 See the Probate and Administration Act 1959 s 35(2) and [330.470].
Page 368
[330.469]
Sureties
The security is ordinarily by bond in the prescribed form1 by the grantee and two sureties in the amount at
which the estate2 within the jurisdiction is sworn, without deduction of any debts due by the deceased,
other than debts secured by mortgage or charge3.
The Registrar must so far as possible satisfy himself that every surety to an administration bond is a
responsible person4. Unless the Registrar directs, no person may be accepted as a surety unless he is
resident in Malaysia5. No officer of the Registry can become a surety without the leave of the Registrar6.
Where the proposed surety is a corporation (other than a trust corporation7), there must be filed an
affidavit by the proper officer of the corporation to the effect that it has power to act as surety and has
executed the bond in the manner prescribed by the constitution, and containing sufficient information as to
the financial position of the corporation to satisfy the Registrar that its assets are sufficient to satisfy all
claims which may be made against it under any administration bond in respect of which it is or is likely to
become a surety8. However, the Registrar may, instead of requiring an affidavit in every case, accept an
affidavit made not less often than once in every year together with an undertaking by the corporation to
notify the Registrar immediately in the event of any alteration in its constitution affecting its power to
become surety to administration bonds9.
1 Ie in RC App A Form 162: see RC O 71 r 34(1).
4 RC O 71 r 34(4).
5 RC O 71 r 34(5).
6 RC O 71 r 34(6).
7 As to grants to trust corporations see [330.413] and following.
8 RC O 71 r 34(7).
[330.470]
Dispensation of securities
If sufficient reason1 is given, the court2 may increase or decrease the number of sureties or dispense3
with them and may reduce the amount of the bond4, and the court in exercising its discretion5 must
consider the standing of the parties, the nature of the property6, the amount of the debts and the extent of
the administrator's personal interest in the distributive share of the estate7.
Where a trust corporation8 has obtained administration it is not required to give security9; and when the
administrator is entitled to the whole of the estate after the payment of the debts, sureties in the bond may
ordinarily be dispensed with by the Registrar10. Sureties may be required by the Registrar to justify
dispensation11.
1 In Re Tan Ghee Kooi (decd), Khaw Phaik Guat & Tan Chee Poh petitioners [1958] MLJ 1, as no sufficient reasons had
been shown, the petitioner's application for dispensation for security was dismissed by the court.
Page 369
3 See Practice Note No 3 of 1946 where applications for the dispensing of sureties, or the reducing of the amount of bond or
otherwise must be filed with an ex parte chambers summons supported by an affidavit setting out the facts so relied on.
4 See [330.468].
5 See Re Hee Chun Meng [1989] 2 MLJ 310.
7 Probate and Administration Act 1959 (Act 97) s 35(2). For the meaning of 'administrator' and 'estate' see [330.242] notes 5
and 3 respectively.
8 For the meaning of 'trust corporation' see [330.251] note 5. As to grants to trust corporations see [330.413].
9 Probate and Administration Act 1959 s 35(3). For the meaning of 'administration' see [330.244] note 8.
11 Probate and Administration Act 1959 s 35(5); see Re Dumsheah (1890) 4 Ky 594.
[330.471]
Liability of sureties
Sureties1 to an administration bond2 are liable to see to the proper distribution of the assets of the estate
amongst the persons who are entitled to those assets or can give a valid receipt3.
In claims against sureties, where there is judgment against the administrator, the amount of liability must,
if the sureties insist upon it, be proved against them as it would have to be proved if the action were
against the administrator4.
1 See [330.469].
2 See [330.468].
3 Basapah v Narayanan Chettiar [1936] MLJ 26.
4 Karthiraysan Raja Gopal v Ahna Seena Supaya Thevar [1940] MLJ 283. As to administrators see [330.245].
[330.472]
Bond by creditor who is administrator
When letters of administration1 are granted to a creditor2 he may be required to enter into a bond to pay
the debts of the deceased rateably, without preferring his own debt3. Where the administrator4 has taken
proceedings on behalf of the estate, but had not provided the security nor extracted the letters, all further
proceedings should be stayed until the said security is furnished5.
2 See [330.419].
4 See [330.245].
Page 370
5 Muthoo Karuppan Chitty v Onan (1912) 2 MC 36.
[330.473]
Assignment of bond
An administration bond1 can be assigned at the instance of the court2 if it appears to the court that the
condition of the bond has been broken3 to some named person who is then entitled to sue on the bond
under his own name on behalf of all persons interested in the estate4 in respect of which the bond was
executed as though it had originally been made in his favour5.
An application to assign an administration bond must be made by notice of application to the Registrar
and the notice of application must be served on the administrator6 and on every surety7.
1 See [330.468].
3 Re Lee Peng San (decd), Lai Yong Tiam v Yong Yun Chow [1970] 1 MLJ 93 where in the absence of prima facie evidence
of any breach of conditions of the bond, the court dismissed the plaintiff's application to assign the administration bond
executed by the administrators of the estate; Re Lebby Long (1879) 2 Ky Ecc 27 where the court ordered a bond to be
assigned on the ex parte application of a next-of-kin on being satisfied that a breach of the bond had been committed, but at
the risk of the applicant.
5 Probate and Administration Act 1959 (Act 97) s 37. See Re Lee Peng San (decd), Lai Yong Tiam v Yong Yun Chow [1970]
1 MLJ 93 at 94 per Sharma J where the court held that the use of the word 'appears' in the Probate and Administration Act
1959 s 37 is not synonym with 'is suspected' but means that there must be evidence which reveals or makes visible that the
bond has been broken.
6 See [330.245].
7 RC O 71 r 34(8). As to sureties see [330.469].
[330.474]
Discharge of administration bond
Where an administrator1 who has given a bond2 is in possession of any part of the estate3 of the testator
or intestate4 and is prevented from fully administering the estate by reason of inability to ascertain or to
communicate with persons beneficially entitled to the residue in his hands, he may exhibit in the court5 an
account showing how the estate has been administered6, and may after the account has been verified as
the court may direct, with leave of the court pay into the court, or if the court so directs to a trust
corporation7, the residue in his hands; and after any such payment the court must, unless good cause is
shown to the contrary, discharge the administrator and his surety or sureties8 (if any) from the obligations
of the said bond9.
2 See [330.468].

Page 371
6 Basapah v Narayanan Chettiar [1936] MLJ 26.
7 For the meaning of 'trust corporation' see [330.251] note 5.
8 As to sureties see [330.469].

Page 372
Administration and Succession/(2) Executors and Administrators/(3) Devolution on the Representative/ A.
Property which Devolves
(3) DEVOLUTION ON THE REPRESENTATIVE

A. PROPERTY WHICH DEVOLVES
[330.475]
Devolution
Devolution means the passing of property whether personal or real from a deceased person to his
personal representative1. In the Malaysian context, the terms 'personalty' and 'real property' refer to
movable2 and immovable property3 respectively.
1 Ong Ah Goh v Kuan Keh Lan [1968] 2 MLJ 57 where the estate of the intestate devolved to the deceased's two sole
beneficiaries without any grant of letters of administration; Kersah La'usin v Sikin Menan [1966] 2 MLJ 20 where the
unregistered transfer of land gave a purchaser a contractual right which on his death vests in his personal representative. As
to personal representatives see [330.242] and following.
2 As to devolution of movable property see [330.476].
3 As to devolution of immovable property see [330.477].
[330.476]
Devolution of movable property
Movable property of a deceased includes money, stocks and shares1, securities for money, interest in
partnership property, choses in action2, rights (including intellectual property rights3), credits, goods, life
interests and all other property which are not immovable and any share or interest in such property.
The law of the domicile ('lex domicilii'4) which governs intestate succession to movables5, will decide as to
whom the title of the shares of a company will devolve, in what proportion and in what order of priority.
1 See Re L Y Swee & Co Ltd, Khoo Leong Kee v L Y Swee & Co Ltd [1968] 2 MLJ 104.
2 A chose in action though intangible, is said to be a moveable property which is a right that can be moved from one person
to another depending on the capacity to sue: Re Hee Chun Meng [1989] 2 MLJ 310, where the court reiterated that the
Probate and Administration Act 1959 (Act 97) s 2 provides that 'property' includes 'a thing in action'; see [330.242] note 7.
3 See [330.497].
4 Shaik Abdul Latif v Shaik Elias Bux [1915] 1 FMSLR 204, CA ; Ong Siew Hong v Ooi Kim Lian [1923] 3 FMSLR 244,
where the religion of the deceased and the devolution of property upon death were not provided for under the Kedah
Enactments and the court held that the law of the domicile of the deceased should be applied for that purpose. See also Re
Abdul Salam (decd), Abdul Razak v Kasi Mohamed Shirazil Anwar [1938] MLJ 83.
5 See Lily Iskandar v Bonardy Leo [1986] 1 MLJ 368, CA (Sing) .
[330.477]
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Devolution of immovable property
Immovable property includes landed property and interests in land. The devolution of immovable property
depends on its location unless the law of the country where the immovable property in question is situated
does not adequately provide for the devolution of such property; and in such a situation the law of the
domicile of the deceased, the owner of such property, will be applied to determine devolution1.
The lex situs2 governs intestate succession to immovables. In the case of a conflict, the law of the situs,
that is where the property is situated, should be the yardstick to determine the issue3. The legal estate of
immovable property will vest in the personal representative4 on the transmission of the property5 upon the
executors having extracted grant of probate, or in the case of the administrator upon him having extracted
the grant of letters of administration6.
1 See Ong Siew Hong v Ooi Kim Lian [1923] 3 FMSLR 244.
2 Shaik Abdul Latif v Shaik Elias Bux [1915] 1 FMSLR 204, CA ; Meyammai Achi v Valliammai (unreported, 8 July 1995;
originating summons 659 of 1992) (Sing) .
3 Sheriffa Fatimah v Syed Allowee (1883) 2 Ky Ecc 31.
5 As to the transmission of property on death see the National Land Code (Act No 56 of 1965) s 346 and [330.478]. See
also Ong Ah Moy v Nga Ah Fan [1978] 1 MLJ 177, FC , where in the absence of an order for transmission to the deceased
sole beneficiary, the originating summons taken by the administratrix and the administrator to transfer land to themselves
and other beneficiaries of the estate of the deceased sole beneficiary must be premature. In Lee Eng Eow v Low Ah Lian
[1992] 1 MLJ 678 the word 'transmission' was held to mean transmission by operation of law, including devolution by death.
As to the transmission of shares see Gan Tuck Meng v Ngan Yin Groundnut Factory Sdn Bhd [1990] 1 MLJ 227.
6 In practice, it is probable that jurisdiction will be exercised only where the deceased died domicile in or where he left
property in Malaysia. As to the re-sealing of Commonwealth grants see the Probate and Administration Act 1959 (Act 97) ss
52, 53; see also [330.459] and following. In Long Pines Enterprise Sdn Bhd v Beeran Kutty Yusof [1999] 1 CLJ 278, it was
held that a beneficiary to an estate has no capacity in law to enter into an agreement for sale of land which forms part of the
estate.
[330.478]
Transmission in respect of immovable property
The personal representative or representatives1 of any deceased person may apply to the Registrar of
Titles2 to be registered as such in respect of any land3, or share or interest in land, forming part of that
person's estate4. The application must be accompanied by the grant of probate or letters of administration,
the issue document of title to the land5 or, where the application relates to a lease or a charge, the
duplicate of the document; and such other documents or evidence as the Registrar of Titles may require,
or as may be prescribed6. Until registration of the name(s) of the personal representative or
representatives by the Registrar of Titles7, no personal representative or representatives is capable of
executing any instrument of dealing in respect of any land, share or interest of the deceased person8.
Any land, share or interest vested in any person as trustee will, on its transmission to a personal
representative or representatives, continue subject to all trusts to which it was subject at that person's
death9.
2 'Registrar' in the National Land Code (Act No 56 of 1965) refers to the Registrar of Titles: see s 5.
3 'Land' includes: (1) that surface of the earth and all substances forming that surface; (2) the earth below the surface and all
substances in the earth; (3) all vegetation and other natural products, whether or not requiring the periodical application of
Page 374
labour to their production, and whether on or below the surface; (4) all things attached to the earth or permanently fastened
to any thing attached to the earth, whether on or below the surface; and (5) land covered by water: National Land Code s 5.
4 National Land Code s 346(1).
5 'Issue document of title' means any document prepared for issue to the proprietor of any land (whether under the National
Land Code or under the provisions of any previous land law), being a copy of, or an extract from the register document of
title relating to the land: s 5. 'Register document of title' means any document registered, or prepared for registration under
the National Land Code and evidencing or, as the case may be, intended to evidence title to land, and any document
evidencing title to land registered before the commencement of the Code under the provisions of any previous land law: s 5.
7 See the National Land Code s 346(3).
[330.479]
Partnership property
A personal representative1 of a deceased partner in a partnership is entitled in equity to the deceased

partner's interest in the partnership property2 subject to the terms of the partnership agreement. Where
there is no express provision in the partnership agreement or there is an express provision that statutory
provision3 will apply or in the absence of any partnership agreement, the partnership assets must all be
sold including the goodwill if of saleable value, and the personal representative of the deceased partner is
entitled to such amount due from the realisation of the partnership assets in respect of the deceased
partner's share in the partnership4. The amount due is a debt accruing at the date of death of the
deceased partner5.
Where land or any interest in the land has become partnership property, it is, unless the contrary intention
appears, treated as between the partners (including the representatives of a deceased partner), and also
as between the heirs of a deceased partner and his executors or administrators6, as personal and not real
estate7.
Subject to any agreement between the partners, the amount due from surviving or continuing partners to
an outgoing partner or the representatives of a deceased partner in respect of the outgoing or deceased
partner's share is a debt accruing at the date of the dissolution or death8.
2 See Ganapathy Chettiar v Periakaruppan Chettiar [1962] MLJ 207, PC , where the administrator of an estate applied by
way of an ex parte summons for an order for the sale of partnership property, it was held that although the summons did not
relate directly to the deceased's estate, it had to be treated as being taken out in the course of administration and that the
beneficiary was entitled to be served with such summons as the estate was entitled to a share of the proceeds of sale and
the beneficiary was entitled to a share. See further PARTNERSHIPS (2011 Reissue) [160.021].
3 Ie the Partnership Act 1961 (Act 135) s 26; see Wong Sang Giap v Wong Keng Giap [1999] 2 CLJ 618.
4 See the Partnership Act 1961 s 22.
5 Abdul Majeed v Official Administrator, FMS [1939] MLJ 267 where the suit was one against the defendant as a partner in
the partnership and it could only be an action for an account and share of the profits of a dissolved partnership, the
dissolution having been effected by the death of the deceased partner.
6 Wong Sang Giap v Wong Keng Giap [1999] 2 CLJ 618.
7 Partnership Act 1961 s 24.
8 Partnership Act 1961 s 45.

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[330.480]
Partnership accounts
Partners are bound to render true accounts and full information of all things affecting the partnership to
any partner or his legal representatives1. On the other hand, the legal representatives of a deceased
partner must account to the firm for any benefit derived by him, without the consent of the other partners,
from any transaction undertaken after the partnership has been dissolved by the death of the deceased
partner, and before the affairs of the partnership have been completely wound up, either by any surviving
partner or by the representatives of the deceased partner2.
1 Partnership Act 1961 (Act 135) s 30; and see further PARTNERSHIPS (2011 Reissue) [160.027]. See Theivanai Achi v M M
Kathirasen Chettiar [1941] MLJ 128 where it was held that the right to demand accounts of a partnership is inherent in a
partner and that such right descends to the personal representative of a deceased partner.
2 Partnership Act 1961 s 31. See Shaik Pareetho v Ebramsah (1889) 4 Ky 491 where the court held that the plaintiff, the
next-of-kin of the deceased who sued the surviving partner of the firm, was entitled to have the accounts of the business
taken and to a proportion of the profits of the business up to the date of action.
[330.481]
Surviving partners to carry on
Where any member of a firm has died or otherwise ceased to be a partner, and the surviving or continuing
partners carry on the business of the firm with its capital or assets without any final settlement of accounts
as between the firm and the outgoing partner or his estate, then, in the absence of any agreement to the
contrary, the outgoing partner or his estate is entitled, at the option of himself or his representatives, to
such share of the profits made since the dissolution as the court may find to be attributable to the use of
his share of the partnership assets, or to interest at the rate of eight per cent on the amount of his share of
the partnership assets1. However, where, by the partnership contract, an option is given to surviving or
continuing partners to purchase the interest of a deceased or outgoing partner, and that option is duly
exercised, the estate of the deceased partner or the outgoing partner or his estate as the case may be, is
not entitled to any further or other share of profits; but if any partner assuming to act in exercise of the
option does not in all material respects comply with the terms of the contract, he is liable to account for
interest2.
Surviving partners are allowed to charge for their services which are necessary to the earning of profits in
which the administrators of a deceased partner claim a share3.
1 Partnership Act 1961 (Act 135) s 44. See further PARTNERSHIPS (2011 Reissue) [160.041], [160.043].
2 Partnership Act 1961 s 44 proviso. See Re Seet Tiang Lim (decd) [1927] SSLR 40, where an executor may grant an
option to purchase and the granting of such option does not postpone the realisation of the testator's estate for an
unreasonable time.
3 Chew Kong Chin v Estate and Trust Agencies (1927) Limited [1938] MLJ 201.
[330.482]
Page 376
Representatives' right to surplus partnership assets
A personal representative1 is entitled, as against the other partners in the firm and all persons claiming
through them in respect of their interests as partners, to have the property of the partnership applied in
payment of the debts and liabilities of the firm, and to have the surplus assets after such payment applied
in payment of what may be due to the partners respectively, after deducting what may be due from them
as partners to the firm, and for that purpose, the personal representative may, on the termination of the
partnership, apply to the court to wind up the business and affairs of the firm2.
1 As to personal representatives see [330.242] and following.
2 Partnership Act 1961 (Act 135) s 41. See also further PARTNERSHIPS (2011 Reissue) [160.038].
[330.483]
Gifts mortis causa
A donatio mortis causa is a gift inter vivos by which the donee is to have the absolute title to the subject of
the gift, not at once but if the donor dies. The donee's title becomes absolute at the moment of the donor's
death so that the property given never vests in the donor's personal representative1, who is obliged if
necessary to lend his name or give his endorsement to assist the donee in completing his title2.
2 See Re Choong Lye Hin (decd), Choong Gim Guan v Choong Gim Seong [1977] 1 MLJ 96, FC , where the court found it
inequitable that the donee be allowed to retain the benefit of the payment of estate duty paid out of the estate in respect of
the inter vivos gifts kept in a trust account, to the donee, made by the trustee notwithstanding the payment of the estate duty
was a mistake of law.
[330.484]
Married women's property
The property of a married woman belongs to her in all respects as if she were a femme sole and may be
disposed of accordingly1, so that it devolves upon her personal representative2 in the same way as if she
had not been a married woman.
1 Married Women Act 1957 (Act 450) s 5(1).
2 As to personal representatives see [330.242] and following. As to the interest of personal representatives in devolved
property see [330.486] and following.
[330.485]
Shares in a company
Whatever the nature of a company's assets1, the shares or other interests of any member of the company
are personal estate, transferable in the manner provided in the articles of the company2 and not of the
nature of immovable property3. On the death of a sole holder of shares the title to his shares devolves
Page 377
upon his personal representatives4.
1 As to the power to hold land see the Companies Act 1965 (Act 125) s 19, Sch 3 para 9.
2 See the Companies Act 1965 s 30, Sch 4 Table A reg 24.
3 See [330.477].
4 Companies Act 1965 s 30, Sch 4 Table A reg 27. As to personal representatives see [330.242] and following. As to the
interest of personal representatives in devolved property see [330.486] and following.
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Administration and Succession/(2) Executors and Administrators/(3) Devolution on the Representative/ B.
Personal Representatives' Interest in Devolved Property
B. PERSONAL REPRESENTATIVES' INTEREST IN DEVOLVED PROPERTY
[330.486]
Nature of personal representatives' interest
A personal representative1 has no right on his own to the property which devolves upon him as any right
held by him, is in the right of the deceased2, notwithstanding he has full control of all the items making up
the estate and can give a good title to them. The beneficiaries have no specific interest in any of the
property comprising the residue until the residue has been ascertained in due course of administration3,
but they do have a general title to residue, and this general title constitutes a transmissible interest, which
is not affected by the completion of the administration, so that their interests remain the same before and
after the administration is complete, as all that they posses is a chose in action4.
2 The right of the deceased does not extend to a bank's receipt of a joint account of the deceased and another as the words
'or bearer' on such bank receipt merely have the effect that the right to deposit passes at law to the survivor of the two: see
Re Wee Cheow Keng (decd) [1953] MLJ 206, CA (Sing) .
3 Barnardo's Homes v Income Tax Special Commissioners [1921] 2 AC 1, HL ; Ewe Keok Neoh v Ng Aun Thye [1934] MLJ
23, PC .
4 Re Abdul Salam (decd), Abdul Razak v Kasi Mohamed Shirazil Anwar [1938] MLJ 83 where the court held that the right of
a residuary legatee in an undivided residue even if such residue consists principally of immovable property, is a chose in
action; Omar Ali bin Mohd v Syed Jafaralsadeg bin Abdulkadir Alhadad [1995] 3 SLR 388 where the court held that the
beneficiaries of an estate who were entitled to an unexpired term of the leasehold interest in a property of the estate had
locus standi to bring an action against the trustees of the estate who as owners of the reversion purported to sell the
property including the unexpired term of leasehold interest to the purchaser.
[330.487]
Effect of representative's bankruptcy
On the bankruptcy of the personal representative1, the deceased's property does not pass to the trustee in
bankruptcy. However, an executor2 can be adjudged bankrupt in his person capacity of the trade debts of
the testator incurred after his death, provided the executor was in the first place sued in his personal
capacity3.
1 As to personal representatives see [330.242]. As to adjudication of bankruptcy see BANKRUPTCY (2012 Reissue)
[170.125]-[170.127].
2 See [330.243], [330.244].
3 Re Wong Tee Lian [1969] 2 MLJ 217.
[330.488]
Page 379
Joint representation
A joint representative is regarded as a single person. A conveyance of immovable property1 requires the
concurrence of all proving executors2 or all administrators3 with an order of the court4.
Where several executors have been registered as the holders of stocks or shares in a company
incorporated under the Companies Act 19655, a transfer by some or one only is invalid. The procedure
and regulation of transfer is provided in the articles of association of the company6.
1 As to the devolution of immovable property see [330.477].
4 Probate and Administration Act 1959 (Act 97) s 60(2). For the meaning of 'Court' see [330.256] note 3.
5 Ie the Companies Act 1965 (Act 125). See further [150] COMPANIES (2011 Reissue).
6 See the Companies Act 1965 s 30, Sch 4 Table A regs 24-27.
[330.489]
Apportionment
The income (including net rents and profits of immovable property after payment of rates, taxes1, rent,
costs of insurance2, repairs and other outgoings properly attributable to income) of so much of the
movable and immovable property of the deceased as may not be disposed of by his will3, if any, or may
not be required for administration purposes4, may, however the estate is invested, as from the death of
the deceased, be treated and applied as income and for that purpose any necessary apportionment may
be made between tenant for life and remainderman5, subject always to the right of any creditors6 of the
deceased or the rights of the Government in respect of estate duty7 and to any provision of the will, if any
of the deceased8.
1 See generally [480] REVENUE (2013 Reissue).
2 See generally [490] INSURANCE (2011 Reissue).
4 See the Probate and Administration Act 1959 (Act 97) s 68(1)-(3).
6 See [330.419].
[330.490]
Effect of probate or grant of administration
The legal estate is vested in all the executors1 irrespective of whether they have obtained probate or not,
inasmuch as an executor derives his title from the will and not from probate2. In the case of an intestacy,
Page 380
in as much as an administrator3 derives his title from the grant of letters of administration4, until extracted
the administrator has not the document of title and if and when he gets the grant it relates back5.
2 As to the source of an executor's title see [330.265]. See also Meyappa Chetty v Supramaniam Chetty [1916] 1 AC 603,
PC .
4 As to the source of an administrator's title see [330.277].
5 Ibrahim Sah v Zahara Bee (1936) 2 MC 130.

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Administration and Succession/(2) Executors and Administrators/(3) Devolution on the Representative/ C.
Devolution of Trust Estates
C. DEVOLUTION OF TRUST ESTATES
[330.491]
Devolution of movable property held on trust
Movable property1 of a deceased person vested in a sole or last surviving or continuing trustee devolves
upon his personal representatives2, who have the power to appoint new trustee in the place of the
deceased trustee, whether he was the last survivor of several trustees or the sole trustee3.
1 As to the devolution of movable property see [330.476].
2 For these purposes 'personal representative' does not include an executor who has renounced or has not proved: Trustee
Act 1949 (Act 208) s 23(3).
3 Trustee Act 1949 s 23(1), (2). As to the power to appoint trustees of minor's property see the Probate and Administration
Act 1959 (Act 97) s 75; see also HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383.
[330.492]
Devolution of immovable property held on trust
Immovable property1 vested in any person solely on any trust devolves on his death on his personal
representatives2 who may appoint a trust corporation3 or two or more individuals not exceeding four4
(whether or not including the personal representatives or one or more of the personal representatives), to
be the trustee or trustees. Where there is no personal representative of a deceased trustee or chargee
who was entitled to or possess of any interest in land, or where it is uncertain who is the personal
representative of a deceased trustee or chargee entitled to or possessed of any interest in land, or where
it is uncertain whether any chargee entitled to or possessed of any interest in land is living or dead, the
court may make an order vesting5 the land or interest in the land in any such person in any such manner
and for any such interest as the court may direct, or releasing or disposing of the contingent right to such
person as the court may direct6.
1 As to the devolution of immovable property see [330.477].
3 As to grants to trust corporations see [330.413].
4 See [330.406].
5 It is for the applicants to prove to the court's satisfaction that they are entitled to require for a conveyance of the land to
them; see Arief Institute Sdn Bhd v Tan Sri Datuk Abdul Samad bin Idris [1985] 2 MLJ 198, FC .
6 Trustee Act 1949 (Act 208) s 48(e), (f).

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Administration and Succession/(2) Executors and Administrators/(3) Devolution on the Representative/ D.
Devolution of Choses in Action
D. DEVOLUTION OF CHOSES IN ACTION
[330.493]
Personal representatives' interest in choses in action
A chose in action generally passes to the personal representative1 upon the deceased's death, but not an
interest in a chose in action2 which the deceased had jointly with another person who survives him as
such interest passes by survivorship3 to the other person.
2 In Khaw Poh Chhuan v Ng Gaik Peng [1996] 1 MLJ 761, FC , an interest in a chose in action was allowed to be assigned
absolutely by the residuary beneficiary who was in a position to claim his share of the nett residue as administration of the
estate was completed, and hence he had a legal cause of action.
3 As to the presumption of survivorship in regard to claims to property see the Presumption of Survivorship Act 1950 (Act
205) s 2.
[330.494]
Bills of exchange
The title to bills of exchange, cheques and promissory notes1 passes on the death of the deceased holder
to his personal representatives2, who may sue on the instruments or negotiate them.
1 Sarathambal v Supramaniam Chetty [1922] 3 FMSLR 87 where it was held that the administrator had no power to borrow
money on a promissory note and bind the estate.
[330.495]
Right to exercise option to take shares
The representatives of a member of a company, being entitled to the privileges as well as to the burden of
membership, may, so long as the name of the deceased member remains on the register of the company,
claim to avail themselves of an offer of new shares made to the members of the company during the
lifetime of the deceased member1.
1 As to the transmission of shares see the Companies Act 1965 (Act 125) s 30, Sch 4 Table A regs 24-27.
Page 383
[330.496]
Insurance policies
The exclusive right of a personal representative1 to receive and give a discharge for money due upon
policies affected by the deceased on the life of the deceased is subject to terms of the contract of
insurance2.
Where a trust is created on the deceased's life policy, the money payable under such a policy does not
form part of the insured's estate and the assignee of the life policy will not have the benefit of the said
policy, if the trust is not revoked3, but in default of the appointment or in the absence of an assignee, the
money payable under such policy is payable to the insured's personal representatives in trust for the
beneficiaries.
2 See [330.427]. As to life insurance see generally [490] INSURANCE (2011 Reissue).
3 Kishabai v Jaikishan [1981] 2 MLJ 289.
[330.497]
Copyright
Copyright can be transferable by testamentary disposition1 which may be effectively granted or made in
respect of future work, or an existing work in which copyright does not yet subsist, and the future copyright
in any such work is transferable by operation of law as movable property2. Where under a testamentary
disposition, whether specific or general, a person is entitled beneficially or otherwise, to the manuscript of
a literary or musical work, or to an artistic work, and the work has not been published before the death of
the testator, the testamentary disposition is, unless a contrary intention is indicated in the testator's will or
a codicil to the will, construed as including the copyright in the work in so far as the testator was the owner
of the copyright immediately before his death3.
1 See the Copyright Act 1987 (Act 332) s 27(1).
2 Copyright Act 1987 s 27(6).
3 Copyright Act 1987 s 27(7). As to copyright see further INTELLECTUAL PROPERTY (2013 Reissue) [520.002] and following.
Page 384
Administration and Succession/(2) Executors and Administrators/(4) Administration of Estates/ A. The
Representative's First Duties/ (i) Administration
(4) ADMINISTRATION OF ESTATES

A. THE REPRESENTATIVE'S FIRST DUTIES
(i) Administration
[330.498]
General principle of administration
The personal representative's initial duties in the administration of the assets of the deceased's estate
revolve around the tasks of calling in the estate's assets1, determining the beneficiaries2, the later task of
administering3 the affairs of the estate with detachment and impartiality4, and distributing the assets5 as
directed by the will6 in the case of testacy and by statutory requirement in the case of intestacy7. In the
discharge of his responsibility as an accountable person, the personal representative must necessarily
act with due diligence to take possession of all the property of the deceased, and account for any
property in respect of which possession has not been possible, and he must assume a responsibility
which he must discharge with due diligence, by making the fullest inquiries and by taking all such steps
as are necessary and reasonable to ascertain the total value of the deceased's estate8.
An administrator should not initiate litigation between the legal beneficiaries and parties claiming
adversely to them9.
1 'Assets' of the deceased includes monies in joint bank account especially if the other joint holder is not the next-of-kin of
the deceased: Chow Yee Wah v Choo Ah Pat [1978] 2 MLJ 41 at 44, PC, per Lord Fraser of Tulleybelton which cited the
well settled rule in Standing v Bowring (1885) 31 Ch D 282 at 287, CA (Eng), per Cotton LJ that where there is a transfer
by a person into his own name jointly with that of a person who is not his child, or his adopted child, then there is prima
facie a resulting trust for the transferor, but that is a presumption capable of being rebutted by showing that at the time the
transferor intended a benefit to the transferee. As to personal representatives see [330.242] and following.
2 Ong Ah Moy v Nga Ah Fan [1978] 1 MLJ 177, FC . In KB Thurausisingham v Dr Mrs Vijayalakshmi Sivaprakasapillai
[2007] 6 MLJ 333, it was noted that a beneficiary under intestacy has no interest in property in the personal estate of the
deceased until the estate had been fully administered and the distribution made.
3 As to the failure to take preliminary steps in the administration of the estate see Damayanti Kantilal Doshi v Jigarlal
Kantilal Doshi [1998] 4 MLJ 268, CA . For so long as an estate is unadministered, notwithstanding the grant of letters of
administration a beneficiary of the estate has no title or interest in the property. Because of the lack in the title and interest
to such property, he cannot pass on the title and interest to another as if his own, notwithstanding that he is a beneficiary
of the estate. This principle of law applies regardless of whether it involves the estate of a testate deceased or under an
intestacy: Harinder Singh v Futuristic Builders Sdn Bhd [2006] 2 CLJ 272, CA , which was upheld on appeal sub nom
Futuristic Builders Sdn Bhd v Harinder Singh [2008] 2 MLJ 273, [2008] 3 CLJ 117, FC .
4 Yusof bin Ahmad bin Talib v Hongkong Bank Trustee (S) Ltd [1989] 3 MLJ 84.
5 Re Tan Lip Buoy's Will [1996] 2 SLR 663, where it was held that an executor cannot create a trust out of properties held
by him on behalf of the estate.
6 In the absence of any direction to the contrary in the will, sanction of the court is not required. See the Probate and
Administration Act 1959 (Act 97) s 60(2) and Shanti Rupchand Binwani alias Shanti v Udharam Dayaram Binwani [1951]
MLJ 31 where a legatee under a will was not entitled to payment upon becoming sui juris as there was contingent interest,
and hence there would be no entitlement until the contingency or particular event was satisfied.
7 Distribution in the case of intestacy is governed by succession to intestate estates: see the Distribution Act 1958 (Act
300) s 6(1) (as amended by the Distribution (Amendment) Act 1997 (Act A1004) s 3 which came into force on 31 August
1997); and see [330.645] and following. See also Lee Joo Neo v Lee Eng Swee (1887) 4 Ky 325, where the court held that
Page 385
in distributing the estate of an intestate domiciled in the Straits Settlements and leaving property there, the statute of
distribution is the only rule and the exclusion of females in shares in such estates according to Chinese law and custom
was not recognised; Ong Ah Goh v Kuan Keh Lan [1968] 2 MLJ 57, where the court held that the entire estate of the
deceased devolved on his two sons and not on the plaintiff who was not a beneficiary entitled to a distributive share in her
deceased father's estate following the law governing succession on intestacy at the relevant time; Chua Kim Suan v Ang
Mek Chong [1988] 3 MLJ 231; HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383.
8 A-G v Ching Kwong Yew [1993] 2 SLR 225, CA (Sing) .
9 Re Tan Soh Sim (decd) [1951] MLJ 21, CA . As to administrators see [330.245].
[330.499]
Registration of death
Provided that the personal representative1 is aware that he is the executor appointed2 under the will of
the deceased in a testate case or the administrator or is to be appointed as the administrator in an
intestate case by all the beneficiaries or he is the main beneficiary, he should without delay register the
death of the deceased at the relevant Registry of Births and Deaths and later applies for an extraction of
the death certificate of the deceased3.
3 RC O 71 r 5 requires a certificate of death of the deceased or such other evidence of the death to be produced; see Re
Karupaya (decd) [1962] MLJ 128.
Page 386
Representative's First Duties/ (ii) Funeral and Inventory
(ii) Funeral and Inventory
[330.500]
Disposal of the deceased's body
An executor1 is prima facie entitled to the possession of and is responsible for the disposal of the dead
body of the deceased at the cost of the deceased's estate. Care should be taken by personal
representatives2 especially trust corporations3 or professional personal representatives, to observe the
deceased's wishes about the manner of the disposal of the body as well as the deceased's family's
wishes. In the absence of any direction of the deceased in his will (if found and read immediately after
death) as to the expenses and extent of his funeral, reasonable funeral expenses4 should be maintained
as such expenses are the first charge on the estate.
3 See [330.257].
4 Lim Eow Thoon v Lim Fang Tee (1958) 3 MC 164 where a debt against the estate came into existence when the
applicant sold land of his own during the Japanese occupation in order to pay off funeral expenses, estate and other
encumbrances on the lands comprising the estate.
[330.501]
Inventory
The personal representative1 of a deceased person is required to supply to those seeking information
about the deceased person's estate with an inventory. It is incumbent upon personal representatives to
take note of the inventory2 of the deceased person's estate as it is a statutory requirement3.
2 As to the duty of personal representatives in relation to inventories see the Probate and Administration Act 1959 (Act 97)
s 62. The executor in the case where a foreign probate has been resealed in Malaysia, has all the rights and obligations of
an executor as if the grant had been made by the Malaysian court, including the obligation to exhibit an inventory: see
Chung Kok Yeang v PP [1941] MLJ 163, CA . As to the effect of re-sealing see [330.459] and following.
3 The Probate and Administration Act 1959 s 62 stipulates that the personal representative of a deceased person must,
when lawfully required so to do, exhibit, by affidavit filed in the court, a true and perfect inventory and account of the
movable and immovable property of the deceased, and the court has power to require personal representatives to bring in
inventories. In every grant of representation, there is attached to the grant, a schedule of the deceased's assets which is
not limited to any specific property, or excludes any specific property. In Chung Kok Yeang v PP [1941] MLJ 163, CA , the
executor was required to file an inventory.
Page 387
Representative's First Duties/ (iii) Getting in and Investing
(iii) Getting in and Investing
[330.502]
Getting in the estate
The personal representatives1 of a deceased person are under a duty to collect and get in the
deceased's movable and immovable estate2 and administer it according to law3. The personal
representatives are required to determine the extent of the assets and liabilities4 of the deceased as
speedily and diligently as possible.
2 As to the devolution of estate see [330.475] and following.
3 See [330.498] note 7.
[330.503]
Foreign assets
Once representation1 has been granted, it is the duty of the personal representatives2 to administer the
assets in accordance with the lex loci of the assets3. After having given due notice and after having
discharged at the expiration of the time stated in the notice all lawful claims of which he has had notice,
the personal representatives may, instead of distributing any surplus or residue of the deceased's
property4 to persons residing out of Malaysia who are entitled to the property, transfer, with the consent
of the personal representative in the country of domicile, the surplus or residue to him for distribution to
those persons5. It is their duty to get in the assets situated in the country in which the grant was made,
pay the deceased's debts and liabilities and distribute the balance to those entitled6.
1 See [330.256] note 1.
3 See Lily Iskandar v Bonardy Leo [1986] 1 MLJ 368, CA (Sing) .
6 See [330.502].
[330.504]
Page 388
The executor's year
Subject to the obligations and duties of a personal representative1 as prescribed by law2, he is not bound
to distribute the estate3 of the deceased before the expiration of one year from the death4.
2 The prescribed law governing the obligations of personal representatives is, inter alia, the Probate and Administration
Act 1959 (Act 97) and the Trustee Act 1949 (Act 208).
[330.505]
Investments
Notwithstanding that a will specifies the range of investments that the executor1 is authorised to make,
he nevertheless should acquaint himself with the true extent of his power of investment2 and should seek
advice from specialists such as valuers, stockbrokers, solicitors3 and bankers, as the power to do so is
entrenched in the Trustee Act 19494. Where the will is silent on investment of the testator's money, the
executor incurs no liability by leaving it in an interest5 bearing account in the bank, but he must keep it in
a separate account and not mix it with other money. However, if he is directed under the will to invest, he
must not allow money to remain at the bank for an unnecessarily long period, although he may leave a
considerable sum there for the purposes of administration, or until an investment is found, or he must
renew such leases which expire before the time for distribution6.
2 See the Trustee Act 1949 (Act 208) Pt II (ss 4-15). See also Re Tan Tye (decd), Tan Lian Chye v Estate & Trust
Agencies (1927) Ltd [1963] MLJ 373, where the trustees' failure to draw out money deposited in court and investing the
same constituted a breach of trust; Khoo Tek Keong v Ch'ng Joo Tuan Neoh [1934] MLJ 255, [1934] AC 259, PC , where
the Privy Council held that the loans to the Chetties being loans on no security beyond the liability of the borrowers to
repay, were dispositions wholly unwarranted by the terms of the trust and in breach of the trust; Re Tan Tye (decd), British
and Malayan Trustees Ltd v Estate & Trust Agencies (1927) Ltd [1969] 2 MLJ 198, [1969-1971] SLR 253, where failure to
invest may subject a trustee or trustees to liability, to make good the loss; Re Yong Wai Man, ex p Yong Khai Min [1994] 3
MLJ 514 where the court declined to exercise its discretion under the Trustee Act 1949 s 59 to permit the administrator of
the deceased's estate to invest in a unit trust fund which did not qualify as an authorised investment under s 5(3).
3 Chang Kam Long v H H Busfield [1938] MLJ 79 where it was held that it was very undesirable that solicitors' clerks
should be appointed trustees on applications by the firm by whom they were employed. See also Lee Pak Yin v Liew Siew
Yin [1940] MLJ 80, CA .
4 Ie the Trustee Act 1949 s 28.
5 Tan Soo Lock v Tan Jiak Choo [1935] MLJ 202, where in the absence of a trust to accumulate, simple and not
compound interest was charged.
6 Teh Seow Teng v Yap Tai Chi [1912] 1 FMSLR 92, CA , where the court held that it was the duty of the executor to apply
for renewal of mining leases which expired before the time for distribution, as an executor is not divested of his
responsibilities by lapse of time.
[330.506]
Investment of cash
Page 389
Where the will directs the executor1 to carry on the business of the testator, it is essential that the
executor does so only where the business is not losing money2. If a personal representative3 ventures
on his own accord he will be personally liable for the consequences of losses of the business4. The safe
course for the personal representative to adopt is to obtain the sanction of the court in cases where the
personal representative is uncertain whether he has the powers to deal with the estate in a certain
manner5, or in the case where the beneficiaries of an intestate are minors6, or where there is a delay in
distribution7.
2 Bank Bumiputra Malaysia Bhd v Yap Kiow Moi [1973] 2 MLJ 104 where it was held that the executors of the estate of a
deceased testator who entered into a contract for overdraft facilities for the purpose of carrying on the testator's business
were personally liable. See also Cheah Wong Nyan v Palaniappa [1935] MLJ 31.
4 Hee Yong Wah v Hee Keng Thiam (1956) 3 MC 82.
5 See RC O 80 r 2.
6 See Re Yong Wai Man ex p Yong Khai Min [1994] 3 MLJ 514, where the court held that the administrator of an intestate
need not obtain leave of court before investing the money or property of the infant beneficiaries in any investment allowed
by the Trustee Act 1949 (Act 208), but the court declined to exercise its discretion under s 59 of the said Act to permit the
administrator to invest in a unit trust as it did not qualify as an approved investment under s 5(3) of the said Act.
7 See Re Safiah binte Tahar (decd) [1940] MLJ 285 where the administrators' application to court was more than six years
after the death of the deceased, the property sold must be with the sanction of the court.
Page 390
Representative's First Duties/ (iv) Notices for Claims
(iv) Notices for Claims
[330.507]
Issue of advertisements
A prudent trustee would make the usual searches to determine that there are no creditors or persons
with registrable interests where there are mortgages or charges pending, in addition to placing
advertisements in the local newspapers1 or Government gazettes for persons to submit claims2 in
respect of liabilities against the deceased estate3 within a specified period of time4. Such an
advertisement would give protection to a trustee who distributes the estate if there are no claims lodged5.
1 This includes a national newspaper and a newspaper which is circulated among a class of persons and not among the
public generally. In Bhikku Daeng v Maung Shwe Tyn [1980] 2 MLJ 184, FC , it was held that a notice published in the
National Echo which was addressed to the community at large was good notice to the Burmese community.
2 The periods of limitation for actions against personal representatives and trustees by beneficiaries in respect of trust
property and by persons claiming interest in the personal estate of the deceased person under a will or an intestacy, are
laid down by the Limitation Act 1953 (Act 254) ss 22, 23; Limitation Ordinance (Sabah) (Cap 72) s 9; Limitation Ordinance
(Sarawak) (Cap 49) s 9.
3 See the Trustee Act 1949 (Act 208) s 32(1).
4 Ie not less than two months: Trustee Act 1949 s 32(1). A month is a calendar month: see the Interpretation Acts 1948
and 1967 (Act 388) s 3.
5 See the Trustee Act 1949 s 32(2).
[330.508]
Effect of advertising
After the time specified in the advertisements for sending in claims1, the trustees or personal
representatives2 are not liable to any person of whose claim the trustees or personal representatives
have not had notice at the time of conveyance or distribution3. The requirement to advertise applies
notwithstanding anything to the contrary in the will or other instrument, if any, creating the trust4.
A trustee or personal representative acting for the purposes of more than one trust or estate are not, in
the absence of fraud, affected by notice of any instrument, matter, fact or thing in relation to any
particular trust or estate if he has obtained notice of the instrument, matter, fact or thing merely by
reason of his acting or having acted for the purposes of another trust or estate5. However, an executor6
who pays legacies after he has notice that the validity of the will7 is disputed and disregards the notice
merely because he believes the claim against the validity of the will to be unfounded will not be protected
notwithstanding he has advertised8.
1 See [330.507] note 4.

Page 391
3 Trustee Act 1949 (Act 208) s 32(2).
5 Trustee Act 1949 s 33.
7 As to the requisites of formal validity see [330.028] and following.
8 Guardian Trust and Executors Co of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115, [1942] 1 AER
598, PC , which was decided under the New Zealand Trustees Act 1908 which is in pari materia with the Trustee Act 1949
s 32.
Page 392
Administration and Succession/(2) Executors and Administrators/(4) Administration of Estates/ B. Payments
of Debts Presently Due/ (i) Solvent Estates
B. PAYMENTS OF DEBTS PRESENTLY DUE
(i) Solvent Estates
[330.509]
Duty to pay debts
It is the duty of the personal representatives1, as a matter of due administration of a solvent estate to pay
their testator's debtor with due diligence having regard to the assets in their hands properly applicable for
that purpose. The property2 of a deceased person, to the extent of his beneficial interest in the property,
and the property of which a deceased person in pursuance of any general power disposes by his will3,
are assets4 for payments of his debts and liabilities, and any disposition by will inconsistent with the
Probate and Administration Act 19595 is void as against the creditors; and the court6 will, if necessary,
administer the property for the purpose of the payments of debts and liabilities7.
4 Eng Li Cheng Dolly v Lim Yeo Hua [1995] 3 SLR 363, where the court held that the proceeds of an insurance policy not
specifically disposed of in the deceased's will, did not form part of the assets of the deceased's estate and that the
beneficiary named in such policy was solely entitled to the proceeds of the policy. As the policy was taken out during the
marriage (between the deceased and the beneficiary) with the object of creating a fund from which the beneficiary might
benefit, she obtained an immediate trust in her favour which was not defeated by their subsequent divorce.
5 Ie the Probate and Administration Act 1959 (Act 97).
7 Probate and Administration 1959 s 67(1)(a). This provision takes effect without prejudice to the rights of incumbrancers:
s 67(1)(b).
[330.510]
Creditor's statutory rights against beneficiary
If any person to whom any beneficial interest in a deceased person's property devolves or is given, or in
whom any such interest vests, disposes of that beneficial interest in good faith before an action is
brought or process is sued out against him, he is personally liable for the value of the interest so
disposed of by him, but that interest is not liable to be taken in execution in the action or under the
process1.
Accordingly, the property cannot be followed into the hands of a purchaser for value in good faith, even
though he had notice of the existence of the debt. However, an assent, transfer or conveyance by a
personal representative2 to a person other than a purchaser3 does not prejudice the rights of any person
to follow the property4 to which the assent, transfer or conveyance relates or any property representing
Page 393
the same, into the hands of the person in whom it is vested by the assent, transfer of conveyance, nor of
any other person (not being a purchaser) who may have received the same or in whom it may be
vested5.
Notwithstanding any such assent, transfer or conveyance, the court6 may, on the application of any
creditor or other person interested:
(1) order a sale, exchange, mortgage, charge, lease, payment, transfer or other transaction to
be carried out which the court considers requisite for the purpose of giving effect to the
rights of the persons interested7;
(2) declare that the person, not being a purchaser, in whom the property is vested is a trustee
for those purposes8;
(3) give directions respecting the preparation and execution of any conveyance or other
instrument, or as to any other matter required for giving effect to the order9; or
(4) make any vesting order or appoint a person to convey in accordance with statutory
provisions10.
1 Probate and Administration 1959 (Act 97) s 67(2). For the meaning of 'property' see [330.242] note 7.
3 For the meaning of 'purchaser' see [330.307] note 2.
4 The rights of any person to follow property administered by the Corporation (see [330.247] note 1) into the hands of any
person (other than a purchaser), who may have received it, is not prejudiced where the Corporation has been exempted
from giving notice of the distribution of property (comprised in a 'small estate') under the Public Trust Corporation Act 1995
(Act 532) ss 17, 18. As to small estates see [330.756] and following.
7 Probate and Administration Act 1959 s 73(2)(a).
9 Probate and Administration Act 1959 s 73(2)(c).
10 Ie the Trustee Act 1949 (Act 208): Probate and Administration Act 1959 s 73(2)(d). See Re Yap Boon Eng [2001] 6 MLJ
442.
[330.511]
Administration of assets
Debts1 are normally paid after the assets2 of the estate are called in3 and all taxes due and payable by
the estate have been paid and the grant of representation has been obtained. In the case where the
estate concerned is a large one, it would be prudent for the personal representatives4 to advertise
inviting claims to the estate, as such advertisements protect the personal representatives from liability to
claimants who submit claims after the expiration of the period set out in the advertisements5. However,
creditors who fail to file in their claims within the time stipulated, are entitled in law to trace the assets of
the deceased in the hands of the beneficiaries6. In addition to advertisements, it is the duty of the
personal representative to make the usual searches for creditors, as no advertisement will exculpate a
trustee from making the searches which are required of a prudent trustee.
In the absence of the will giving any directions as to the priority for the payments of debts and the fund or
assets from which the debts are to be paid, the Probate and Administration Act 19597 will determine
Page 394
such priority.
In a solvent estate property undisposed of by the will is applied for the payment of funeral, testamentary
and administration expenses8, debts and liabilities9, subject to the retention of a fund sufficient to meet
pecuniary legacies10. A statute-barred debt is not provable against an insolvent estate11.
1 As to the duty to pay debts see [330.509].
2 Assets are not confined to things which were in the deceased's hands. They include a claim for damages brought as a
result of the death of the deceased; see Re Hee Chun Meng [1989] 2 MLJ 310.
3 As to getting in the estate see [330.502].
5 A time frame of normally not less than two months is given in a newspaper or the Government gazette: see the Trustee
Act 1949 (Act 208) s 32(1), (2) and [330.507].
6 As to a creditor's statutory rights against beneficiaries see [330.510].
7 Ie the Probate and Administration Act 1959 (Act 97) s 69(1), Sch 1 Pt I sets out the rules as to payment of debts where
the estate is insolvent while Pt II provides for the order of application of assets where the estate is solvent. See Re Tan
Saw Gan (decd) [1968] 1 MLJ 17.
8 Amarjit Singh Sidhu v Tan Siew Eng [1988] 3 MLJ 227.
9 As to the personal representative's power to protect himself against liabilities of which he has no notice see the Trustee
Act 1949 s 32 and [330.508].
10 See the Probate and Administration Act 1959 s 69(1), Sch 1 Pt II para 1 and [330.523]. See also Re Tan Saw Gan
(decd) [1968] 1 MLJ 17.
11 Fazil Rahman v AR S Nachiappa Chettiar [1963] MLJ 309. See also [330.516] and following.
[330.512]
Acknowledgement
The inclusion of a debt1 by the personal representatives2 in the affidavit for petition for probate or letters
of administration3 is not a sufficient acknowledgement to take the debt out of the operation of statutory
provisions4.
An acknowledgement by one of several personal representatives of any claim to the personal estate of a
deceased person or to any share or interest in the claim binds the estate of the deceased person5. An
acknowledgement of a debt by a person binds his personal representatives and any other person on
whom the liability devolves6.
4 Ie the Limitation Act 1953 (Act 254); Limitation Ordinance (Sabah) (Cap 72) and the Limitation Ordinance (Sarawak)
(Cap 49).
5 Limitation Act 1953 s 28(6).
6 Limitation Act 1953 s 28(5), (7); see Oversea-Chinese Banking Corp Ltd v Philip Wee Kee Puan [1984] 2 MLJ 1, PC .
Page 395
[330.513]
Part payment
Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any
claim to the personal estate of a deceased person or to any share or interest in the claim, and the person
liable and accountable for the debt or claim acknowledges1 the claim or makes any payment2 in respect
of the claim, the right is deemed to have accrued on and not before the date of the acknowledgement or
last payment3.
Every such acknowledgement must be in writing and signed by the person making the
acknowledgement4.
1 As to acknowledgement see [330.512].
3 Limitation Act 1953 (Act 254) s 26(2). See Bajaj Textiles Ltd v Gian Singh & Co Ltd [1971] 2 MLJ 133, PC ; C S Khin
Development Sdn Bhd v Chung Yoke Onn [1985] 2 MLJ 319, FC .
4 Limitation Act 1953 s 27(1). In Halimah bte Abdullah v Tengku Mariah bte Sultan Sulaiman [1980] 1 MLJ 240, a letter
from the defendant's solicitors was sufficient acknowledgement; in Bank of America National Trust Savings Association v
Cheong Hoon Chong [1983] 1 MLJ 285, CA (Sing) , a carbon copy of the letter sent to the plaintiff's solicitors was held to
be sufficient acknowledgement.
[330.514]
Right of retainer
The right of retainer of a personal representative and his right to prefer creditors1 may be exercised in
respect of all assets of the deceased, but the right of retainer will only apply to debts owing to the
personal representative in his own right whether solely or jointly with another person2.
1 Wee Nga Neo v Yeo Kian Guan (1889) 4 Ky 558 where it was held that the executors have a right of retainer, out of the
estate of the testator, for disbursement made by them, and for commission due to them for administering the estate, in
preference to creditors of the estate.
2 Probate and Administration Act 1959 (Act 97) s 69(2). As to personal representatives see [330.242] and following.
[330.515]
When time runs against a creditor
Time runs against a creditor whose cause of action accrued during the life of the deceased debtor, even
though administration to the estate has not been taken out, and there are no personal representative
who can be sued1. As there can be no complete cause of action, however, until there is somebody who
can be sued, time does not begin to run against a creditor whose debt becomes due after the debtor's
death until administration has been taken out for his estate2.
1 An acknowledgement by the deceased may bind persons other than his personal representatives: see [330.512].
2 See [330.266]. See also Fazil Rahman v AR S Nachiappa Chettiar [1963] MLJ 309.
Page 396
Page 397
Administration and Succession/(2) Executors and Administrators/(4) Administration of Estates/ B. Payments
of Debts Presently Due/ (ii) Insolvent Estates
(ii) Insolvent Estates
[330.516]
Application of bankruptcy rules
An estate is said to be insolvent where assets of an estate are insufficient to pay for the funeral,
testamentary and administration expenses as well as all the debts of the deceased. Subject to the
payment of funeral, testamentary and administration expenses which have priority1, the same rules will
prevail and be observed as to the respective rights of secured and unsecured creditors2 and as to debts
and liabilities provable3 and as to the valuation of annuities and future and contingent liabilities4
respectively, and as to the priorities of debts and liabilities, as may be in force for the time being under
the law of bankruptcy with respect to the assets of person adjudged bankrupt5. It is a statutory
requirement for the personal representatives6 of the deceased debtor who had been adjudged a
bankrupt to lodge with the Director General of Insolvency7, a list of the assets and liabilities and such
other particulars of the affairs of the deceased8.
1 Probate and Administration Act 1959 (Act 97) s 69(1), Sch I Pt I para 1.
2 As to secured creditors see [330.518].
3 As to time for proving debts by creditors see [330.517].
4 As to contingent liabilities see [330.519].
5 Probate and Administration Act 1959 s 69(1), Sch I Pt I para 2.
7 See [300.254] note 8.
8 See the Bankruptcy Rules 1969 (PU (A) 199/1969) r 232. As to the order of priority of debts on bankruptcy see the
Bankruptcy Act 1967 (Act 360) s 43. See also United Asian Bank Bhd v Personal Representative of Roshammah (decd)
[1994] 3 MLJ 327, where it was held that Bankruptcy Act 1967 s 43 was not applicable and that s 8 did not preclude the
bank from recovering against the deceased estate as the bank was a secured creditor and the judgment debt of the
deceased's estate was not provable in the borrower's bankruptcy.
[330.517]
Time for proving debt by creditors
A creditor may come in at any time to prove his debt so long as there are assets remaining undistributed,
provided that he has not been guilty of wilful default in not sending his claim earlier1. However, a
personal representative2 must not pay a debt that has been declared by the court to be statute barred as
it is not safe for personal representatives to act out of court on the basis that a right still exists to pay a
statute-barred debt3.
1 As to the effect of advertisement see [330.508].

Page 398
3 Re Choong Lye Hin (decd), Choong Gim Guan v Choong Gim Seong [1977] 1 MLJ 96, FC , where the claim of the
respondent trustee was held not to be time barred.
[330.518]
Secured creditors
Unless the testator has otherwise directed, as between those interested beneficially, property that was at
the death subject to a charge bears the liability or its proportionate part of the charge on the whole
thereof1.
1 See the Probate and Administration Act 1959 (Act 97) s 70 which provides rules on the order of application of the
deceased's assets. See also [330.522] and following.
Page 399
Administration and Succession/(2) Executors and Administrators/(4) Administration of Estates/ C. Discharge
of Liabilities not Presently Due
C. DISCHARGE OF LIABILITIES NOT PRESENTLY DUE
[330.519]
Contingent liabilities
Apart from the protection by advertisement1 in respect of claims not known to them, personal
representatives2 who distribute any part of the estate with notice of future or potential liability are
personally3 liable to the creditor when the debt becomes payable to the extent of the sum distributed. The
personal representative must with notice of such liability, act under the court's direction, thereby obtaining
full protection4.
A trustee who is also a beneficiary under the estate of the deceased cannot obtain an interim distribution
of the trust fund of the residuary estate until the final disposal of the serious claims made against him5.
1 As to the effect of advertisement see [330.508].
3 See Saraspathy v Kanagasundram [1962] MLJ 422, CA .
4 See [330.521].
5 Re Lee Wee Nam (decd) [1982] 1 MLJ 109.
[330.520]
Protection against liability in respect of rents and covenants
Statutory protection1 is given to a personal representative2 or trustee who is liable as such for:
(1) any rent, covenant or agreement reserved by or contained in any lease3;

(2) any rent, covenant or agreement payable under or contained in any grant4 made in
consideration of a rent charge; or
(3) any indemnity given in aspect of any such rent, covenant or agreement.
The protection is available where any such personal representative or trustee satisfies all liabilities under
the lease or grant which may have accrued, and been claimed, up to the date of the conveyance, and,
where necessary, sets apart a sufficient fund to answer any future claim in respect of any fixed and
ascertained sum which the lessee or grantee5 agreed to lay out on the property demised or granted, even
though the period for laying it out may not have arrived, and in any such case the personal representative
or trustee may convey the property demised or granted to a purchaser, legatee, devisee or other person
entitled to call for a conveyance of it6. Thereafter he may distribute the residuary estate of the deceased
testator or intestate, or, as the case may be, the trust estate (other than the fund, if any, so set apart), to or
among the persons entitled to it, without appropriating any part, or any further part, as the case may be, of
the estate of the deceased or of the trust estate to meet any future liability under the said lease or grant7;
and, notwithstanding such distribution, he will not be personally liable in respect of any subsequent claim
Page 400
under the said lease or grant8. However, the right of the lessor or grantor or the persons deriving title
under him to follow the assets of the deceased or the trust property into the hands of the persons among
whom they have been distributed is not prejudiced, and these provisions on protection against liability in
respect of rents and covenants apply notwithstanding anything to the contrary in the will or other
instrument, if any, creating the trust9.
3 'Lease' includes an underlease and an agreement for a lease or underlease and any instrument giving any such indemnity
as is mentioned in the Trustee Act 1949 s 31(1) or varying the liabilities under the lease: s 31(3).
4 'Grant' applies to a grant whether the rent is created by limitation, grant, reservation or otherwise, and includes an
agreement for a grant and any instrument giving any such indemnity as is mentioned in the Trustee Act 1949 s 31(1) or
varying the liability under the lease: s 31(3).
5 'Lessee' and 'grantee' include persons respectively deriving title under them: Trustee Act 1949 s 31(3).
7 Trustee Act 1949 s 31(1)(A).
8 Trustee Act 1949 s 31(1)(B).
[330.521]
Protection under court order
Where the estate is subject to contingent liabilities not within statutory protection1 a personal
representative2 ought not to distribute the assets among the beneficiaries without the sanction of the
court3.
1 Ie under the Trustee Act 1949 (Act 208) s 31: see [330.520].
3 As to the power of the court to authorise dealings with trust property see the Trustee Act 1949 (Act 208) s 59. See also Re
Yong Wai Man ex p Yong Khai Min [1994] 3 MLJ 514.
Page 401
Administration and Succession/(2) Executors and Administrators/(4) Administration of Estates/ D. Order of
Application of Assets/ (i) General
D. ORDER OF APPLICATION OF ASSETS
(i) General
[330.522]
Order of application of assets
In the absence of any direction in the will of the testator and where the estate is solvent, the statutory
order of applications of assets1 takes effect in the administration and distribution. However, where the
testator has directed the combination of all his property into one general fund and the whole of that fund
is to be applied for the payment of debts or legacies, the creation of such mixed funds2 excludes the
statutory order of application of assets and the property of the estate must be applied in the discharge of
the debts or legacies rateably according to their respective values; or where there is a direction for
payment of expenses of the estate out of the proceeds of the conversion of the estate, it is sufficient to
exclude the statutory order so far as it provides primarily for payment out of property undisposed of by
will.
1 See the Probate and Administration Act 1959 (Act 97) s 69, Sch 1 Pt II and [330.523] and following.
2 In Re Valibhoy Charitable Trust [1975] 1 MLJ 187; [1976] 1 MLJ 207, CA (Sing) the question raised was whether the
capital and income set aside for the trusts ought to be applied cy-pres or whether such capital and income ought to be
distributed as on an intestacy among those persons entitled to it according to Muslim law.
[330.523]
Property undisposed of by will
If there is property1 of the deceased undisposed of by will2 and if, as a matter of construction, the will
does not otherwise make provision, this undisposed property is first applicable in payment of debts and
liabilities, but subject to the retention out of it of a fund sufficient to meet any pecuniary legacies3.
3 See the Probate and Administration Act 1959 (Act 97) s 69, Sch 1 Pt II para 1. For the meaning of 'pecuniary legacy' see
[330.527].
[330.524]
Property included in residuary gift
The second class of property1 applicable in payment of debts and liabilities2 is property of the deceased
Page 402
not specifically devised or bequeathed but included, either by a specific or general description, in a
residuary gift subject to the retention out of such property of a fund sufficient to meet any pecuniary
legacies3, so far as it is not provided for under the first class of property4.
1 As to the first class of property see [330.523]. For the meaning of 'property' see [330.242] note 7.
2 See [330.522].
3 For the meaning of 'pecuniary legacy' see [330.527].
4 Ie under the Probate and Administration Act 1959 (Act 97) s 69, Sch 1 Pt II para 1: para 2.
[330.525]
Property the subject of specific gifts
The third class of property1 applicable in payment of debts and liabilities2 is property of the deceased
specifically appropriated or devised or bequeathed, either by a specific or by a general description, for
the payment of debts3.
1 As to the first and second classes of property see [330.523], [330.524] respectively. For the meaning of 'property' see
[330.242] note 7.
2 See [330.522].
3 Probate and Administration Act 1959 (Act 97) s 69, Sch 1 Pt II para 3.
[330.526]
Property charged with payment of debts
The fourth class of property1 applicable in payment of debts and liabilities2 is property of the deceased
charged with3 or devised or bequeathed, either by a specific or by a general description, subject to a
charge for the payment of debts4.
1 As to the first three classes of property see [330.523]-[330.525]. For the meaning of 'property' see [330.242] note 7.
2 See [330.522].
3 See [330.518].
[330.527]
Fund for pecuniary legacies
The fifth class of property1 applicable in payment of debts and liabilities2 is the fund, if any, retained to
meet pecuniary legacies3. 'Pecuniary legacy' being a gift of money includes an annuity, a general
legacy4, demonstrative legacy5 so far as it is not discharged out of the designated property, and any
general direction by a testator for the payment of money, including all death duties free from which any
Page 403
devise, bequest or payment is made to take effect6.
1 As to the first four classes of property see [330.523]-[330.526]. For the meaning of 'property' see [330.242] note 7.
2 See [330.522].
4 As to general legacies see [330.565].
5 As to demonstrative legacies see [330.566].
[330.528]
Property specifically devised or bequeathed
The sixth class of property1 applicable in payment of debts and liabilities2 is property specifically devised
or bequeathed, rateably according to value3.
1 As to the first five classes of property see [330.523]-[330.527]. For the meaning of 'property' see [330.242] note 7.
2 See [330.522].
[330.529]
Property appointed
The seventh class of property1 applicable in payment of debts and liabilities2 is property appointed by
will3 under a general power, rateably according to value4.
1 As to the first six classes of property see [330.523]-[330.528]. For the meaning of 'property' see [330.242] note 7.
2 See [330.522].
[330.530]
Interests charged with the payment of debts
Where a person dies possessed of, or entitled to, or, under a general power of appointment, by his will1
disposes of an interest in property2 which at the time of his death is charged with the payment of money,
whether by way of legal mortgage, equitable charge or otherwise (including lien for unpaid purchase
money), and the deceased has not by will, deed or other document signified a contrary or other
intention3, the interest so charged is, as between the different persons claiming through the deceased,
primarily liable for the payment of the charge, and every part of the said interest, according to its value,
Page 404
will bear a proportionate part of the charge on the whole thereof4.
3 As to what constitutes a contrary intention see [330.532].
[330.531]
Secured and unsecured debts
The statutory order of application of assets1 applies to the discharge of unsecured debts, whereas
secured debts are primarily payable out of the property on which they are charged2. In accordance with
this principle, where a person has contracted to purchase property and dies before paying the purchase
money, the property contracted to be purchased is primarily liable for the unpaid purchase money,
unless by his will or deed or other document he has signified a contrary intention3, and a devisee or
successor is not entitled to have the unpaid purchase money discharged or satisfied out of any other part
of the testator's estate.
[330.532]
What constitutes a contrary intention
No contrary or other intention1 is deemed to be signified:
(1) by a general direction for the payment of debts or of the debts of the testator out of his
movable property2 or of his residuary estate; or
(2) by a charge of debts upon any such estate3,
unless the intention is further signified bywords expressly or by necessary implication referring to all or
some part of the charge4. This provision, however, does not affect the right of a person entitled to the
charge to obtain payment or satisfaction of the charge either out of the other assets of the deceased or
otherwise5.
1 See Re Will of P M Framroz (decd), S F Framroz v The Chartered Bank (M) Trustee Ltd [1972] 1 MLJ 43, [1969-1971]
SLR 180, CA (Sing) .

Page 405
Administration and Succession/(2) Executors and Administrators/(4) Administration of Estates/ D. Order of
Application of Assets/ (ii) Testamentary and Administration Expenses
(ii) Testamentary and Administration Expenses
[330.533]
General principle
It is important to decide whether costs and expenses incurred by a personal representative1 are properly
payable out of the estate as testamentary and administration expenses2 or should be borne by the
legatees or devisees or persons entitled on intestacy out of their respective interests. The general
principle is that the estate must bear the testamentary expenses incidental to the proper performance of
the duties of the personal representative but not the expenses involved in the execution of the trusts3
which arise after the estate has been administered or an assent given4.
2 See [330.522].
3 Costs and expenses incidental to the trust estate can be paid out of the property or income of the property by order of
the court: see the Trustee Act 1949 (Act 208) s 62.
4 In Amarjit Singh Sidhu v Tan Siew Eng [1988] 3 MLJ 227, it was held that the court has the power to ratify, by
supplemental order, a mere omission by personal representatives to obtain prior approval for what would otherwise have
been lawful expenditure and expenses. As to assents see [330.627] and following.
[330.534]
General cost of administration
The term 'testamentary expenses' is not confined to expenses connected with the will; it applies to
intestacy as well. This means that the estate must bear the cost of obtaining the grant, collecting and
preserving the assets1, discharging debts2 and distributing the balance3 as well improving the legacy of
one of the beneficiaries of the estate4. In practice it seems that any cost of moving and storing the
objects specifically bequeathed5 before the executor assents6 to the bequest is, however, borne by the
legacy. After assent, this cost must be borne by the legatee.
3 As to the distribution of assets see [330.563] and following.
4 Re Kavena Hadjee Mohamed Yoosuf (decd), Estate & Trust Agencies (1927) Ltd v Fatimah Sham binte Hadji Sahib
[1936] MLJ 1, CA , where the executor expended money on completing the erection of some houses on property settled
on the testator's son, it was held that the cost of completing the said houses should fall on the personal estate of the
testator.
5 As to specific legacies see [330.564].
6 As to assents see [330.627] and following.

Page 406
[330.535]
Fees of trust corporations
The estate must bear the fees of the Corporation1, in the event the estate is administered by the
Corporation.
1 As to the fees of the Corporation see the Public Trust Corporation Act 1995 (Act 532) s 33. As to the Corporation see
[330.247]; see also [330.413] and following.
[330.536]
Costs of proceedings
Any costs in contentious probate action1 are at the court's discretion2. Costs follow the event3 and where
there is a reasonable ground for inquiry, costs will be awarded out of the estate4. However, where costs
are occasioned by the gross negligence of the personal representatives5 in the discharge of their
fiduciary duties, or they institute proceedings unnecessarily6, they must pay the costs personally7.
1 As to what is a contentious probate action see [330.364].
2 As to the discretion of the court see [330.394].
3 As to costs following the event see CIVIL PROCEDURE (2014 Reissue) [190.12-006].
4 Re Eusoff Mohamed Salleh Angullia (decd) [1939] MLJ 100; Ganapathy Chettiar v Periakaruppan Chettiar [1962] MLJ
207, PC , where the Privy Council held that the order for the appellant administrator to pay costs personally should be set
aside and that the appellant should be given liberty to apply for his costs out of the estate as proper expenses in the
administration of the estate.
6 Goh Cheng Teik v Syarikat Goh Guan Ho [1997] 4 MLJ 403.
7 Re H Somapah (decd) [1946] MLJ 25.
[330.537]
Right of indemnity
The Trustee Act 19491 provides for indemnities to personal representatives2 against liability in respect of
rents and covenants3, protection by means of advertisements4 and notices5.
The court has the power to relieve a personal representative where he has acted honestly and
reasonably and ought fairly to be excused. Hence, any payment or disposition made or permitted in good
faith under probate or letters of administration will be indemnified and protected, notwithstanding any
defect or circumstances whatsoever affecting the validity of the probate and letters of administration6.
1 Ie the Trustee Act 1949 (Act 208).
3 See the Trustee Act 1949 s 31 and [330.520].

Page 407
6 Probate and Administration Act 1959 (Act 97) s 64(1); see [330.306]. For the meaning of 'probate' see [330.244] note 7.
For the meaning of 'administration' see [330.244] note 8.
Page 408
Administration and Succession/(2) Executors and Administrators/(4) Administration of Estates/ E. Trusts and
Powers of the Representative/ (i) Trusts and Duties Generally
E. TRUSTS AND POWERS OF THE REPRESENTATIVE
(i) Trusts and Duties Generally
[330.538]
Commencement of trusteeship
Once the assets of the estate have been called in1, in the sense that the estate has been cleared of
debts and liabilities2 and the assets have been vested in the personal representatives3, trusteeship
begins4 in relation to the residuary estate, and trustees can be appointed to act with the personal
representatives or in place of them5.
A trustee's duty is to distribute the assets of the estate6 to whoever is the beneficiary, whether named in
the will or by operation of the laws on intestacy7. The trustee is conferred separate powers by statute8 in
the administration of the estate of a deceased person and the court is empowered9 to remove or
substitute10 a trustee or trustees11 or to appoint new trustees12 in the place of the trustee of the
deceased, who remains out of Malaysia, desires to be discharged, refuses, or is unfit to act as trustee, is
incapable, or is a minor13. However, the court is not empowered to appoint an executor14 or
administrator15 either in substitution of or in addition16 to existing trustees17 or to remove a person
named as executor in a will who is willing to act, before the grant of probate.
1 As to getting in the estate see [330.502].
2 As to the payment of debts see [330.509] and following.
3 As to the devolution of property see [330.475] and following. As to personal representatives see [330.242] and following.
4 See Wanchee Incheh Thyboo v Golam Kader (1883) 1 Ky 611; Stubbs v Loh Hoh Seng (1888) 4 Ky 409; Khoo Cheong
Puay v The Oversea Chinese Banking Corp Ltd [1935] MLJ 93 where the bank executors acted as executors and not as
trustees since they had not completed their duties as executors.
5 Syed Ali Redha Alsagoff (administrator of the estate of Mohamed bin Ali (decd)) v Syed Salim Alhadad [1996] 3 SLR 410
where the administrators of the deceased administrator had no power to appoint trustees for the residuary property of the
estate of whom he was the administrator, as no one but the administrator de bonis non had the power over the residuary
estate left unadministered. See also Re Yap Boon Eng [2001] 6 MLJ 442, where the applicants, who were the executors,
made an application for an order that certain lands be vested on them as trustees for the beneficiary and the court held
that they had not shown why they require a conveyance of the lands to them as trustees for the beneficiary in order for
them to manage the lands and that, in fact, deriving authority from the will of the testator, they as executors could manage
the lands without any conveyance of the lands to them as trustees for the beneficiary.
7 As to intestate succession see [330.645] and following.
8 See the Trustee Act 1949 (Act 208).
9 See RC O 80 r 2(3). See also Rachael Mei Ling Ong v Dato' Bruno Henry Almeida [1998] 3 CLJ 71, [1998] 1 AMR 600.
10 In Chang Kam Long v H H Busfield [1938] MLJ 79, it was held that where all the beneficiaries so desired if and when
the change would result in substantial saving to the estate regardless of whether the trustees had committed any breach of
trust, the court could remove paid trustees and substitute them for other paid trustees.
11 See the Trustee Act 1949 s 45(1). See also Rachael Mei Ling Ong v Dato' Bruno Henry Almeida [1998] 3 CLJ 71; Khaw
Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457.
Page 409
12 See the Trustee Act 1949 s 60(1). See also Re Choong Lye Hin (decd), Choong Gim Guan v Choong Gim Seong
[1977] 1 MLJ 96, FC ; Rachael Mei Ling Ong v Dato' Bruno Henry Almeida [1998] 3 CLJ 71.
13 See the Trustee Act 1949 s 40(1). See also Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457.
14 See [330.243], [330.244].
15 See [330.245].
16 Syed Salim Alhadad v Dickson Holdings Pte Ltd [1997] 2 SLR 257, where it was held that only a trustee or trustees of
the will of the testator can appoint further trustees to the estate of the testator.
17 See the Trustee Act 1949 s 45(3). See also Ng Moo Yin v Ng Chee Kong [1982] 2 MLJ 42; Khaw Cheng Bok v Khaw
Cheng Poon [1998] 3 MLJ 457.
[330.539]
Personal representatives' duties in exercising powers
It is the duty of personal representatives1 to hold an even hand between all the beneficiaries of the
estate and they should not initiate litigation between the legal beneficiaries and parties claiming
adversely to such beneficiaries2. They must act fairly, prudently and properly in the management of the
estate as a whole3. Fairness of administration on the part of a personal representative is required insofar
as the interests of the persons entitled to the benefit of the property of the estate are concerned4.
Executors are not divested of their duties by lapse of time5.
2 Re Tan Soh Sim (decd) [1951] MLJ 21, CA . See also Pang Chuan Cheong v Oh Kwong Foi [2007] 8 MLJ 354 (issue as
to which next-of-kin ranked higher in obtaining grant in intestate estate).
3 Re Koh Sek Lim (decd) [1958] MLJ 256. As to the powers, rights, duties and obligations of personal representatives see
the Probate and Administration Act 1959 (Act 97) Pt V (ss 59-66). See also Long Pines Enterprise Sdn Bhd v Beeran Kutty
Yusof [1999] 1 CLJ 278.
4 Lim Eow Thoon v Lim Keng Chuan [1965] 2 MLJ 154.
5 Teh Seow Teng v Yap Tai Chi [1912] 1 FMSLR 92, CA . As to executors see [330.243], [330.244].
Page 410
Powers of the Representative/ (ii) Powers of Sale and Charge
(ii) Powers of Sale and Charge
[330.540]
Powers of sale
The power of the executor1 to deal in and dispose of property in the case of a testate is to be referred to
in the will. In the absence of any such power granted by the testator in the will, the executor needs to
seek the sanction of the court2.
In the case of an intestacy, the administrator3 in dealing with the property of the deceased may not
without the previous permission of the court4, mortgage, charge or transfer by sale5, gift, exchange or
otherwise any immovable property situate in any state for the time being vested in him6; or lease any
such property for a term exceeding five years7. If the administrator fails to obtain the court's sanction for
the disposal of property, the disposal is voidable at the instance of any other person interested in the
property8.
1 As to executors see [330.243], [330.244]. The testator's property vests in his executor from the time of his death; in an
administrator from the time of the grant of letters of administration: see Woolley v Clark (1822) 5 B & Ald 744, [1814-23] All
ER Rep 584.
2 See the Probate and Administration Act 1959 (Act 97) s 60(4)(a), where administrators require leave of the court to
mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property. See also Ong Thye Peng v Loo
Choo Teng [2008] 4 MLJ 31, FC ; Khoo Cheong Puay v The Oversea Chinese Banking Corp Ltd [1935] MLJ 93, where the
court held that on the true construction of the will, it contained no restriction on the executor's power of sale over the
testator's immovable property and that accordingly the executors could sell without an order of court; Haji Saud v Haji
Ahmad [1957] MLJ 50, CA , where it was held that an administrator can enter into an agreement for the sale of immovable
property but the agreement is unenforceable unless the permission of the court is obtained; Ng Lit Cheng v Felixia
Varnakulasinghe [1977] 2 MLJ 249, FC ; Gan Khay Beng v Ng Liat Cheng [1982] 1 MLJ 163, PC ; Silimuthu v Amalu
[1983] 1 MLJ 190; Yap Yoke Luan v Ong Wee Tok [1984] 1 MLJ 23, FC , where it was held that potential purchasers
under a conditional contract take the risk of losing their bargain if the court refused to grant approval; Tan Tock Kwee v
Tey Siew Cha [1995] 4 CLJ 658, where the charges of the property of the estate notwithstanding charged pursuant to the
National Land Code (Act No 56 of 1965), were in contravention of the Probate and Administration Act 1959 s 60(3) as the
chargee bank had notice that the property was trust property; Re Ramanathan s/o AR A Nachiappan (Administrator De
Bonis Non with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90 where in the event
the grant is by letters of administration with will annexed and not by way of a grant de bonis non, there would be no need
for leave of court to sell property of the estate of the deceased; Lim Liang Kee v Goh Bee Hwa Mabel [1997] 5 MLJ 128,
[1998] 4 CLJ 127 where the sale and purchase agreement remained unenforceable until the permission of the court is
obtained; Md Zubir bin Hamid (as beneficiaries of the estate of Hj Saud bin Hj Deris and Muhammad Salleh bin Hj Deris,
deceased) v Zahari bin Salleh [2017] 4 MLJ 351, CA .Where infants are involved, before the court considers any
application to divest the interest of beneficiaries, the court must be satisfied that such an application is being made for the
benefit of the infants. The consent of the guardian ad litem must not be taken to be a mere rubber stamp of approval: see
Re Lua Kin Suai [1998] 7 MLJ 258; Soon Seng Co Sdn Bhd v Toko Palayakat Jamal (M) Sdn Bhd [1999] 6 CLJ 397. See
also Ong Thye Peng v Loo Choo Teng [2004] 3 MLJ 201, CA .In considering an application by an administrator for the
permission of the court under s 60(4) for the transfer by sale of immovable property vested in the administrator, the
emotions and sentiments of beneficiaries are not relevant: see Pang Kim Moi v Pang Ah Kiau, [1997] MLJU 124. Section
60(4) is intended to prevent any improper sale of or dealing in the immovable property of the estate of a deceased by an
administrator, who is required by law to apply to the High Court for an order of sale, supported by affidavit exhibiting a
reliable valuation report on the property concerned for the consideration of the judge. Once the order of sale is made under
s 60(4), it is the administrators duty to sell the estate property at a price not lower than the reserved price. The
administrators should act in the best interest of the estate and sell it at the highest price that is available: Khoo Cheng v
Gan Hong Yock [2005] 3 MLJ 614, [2005] 2 CLJ 85, CA .In Re Vicnandan a/l Maria Dass, [2000] MLJU 360, the applicant
as an administrator of the estate of his late father, applied ex-parte seeking permission of the court to transfer a piece of
land belonging to the estate of the deceased to one Ng Sau Kheng pursuant to a sale and purchase agreement made
between the applicant (as the vendor) and the said Ng Sau Kheng (as the purchaser). The applicant then applied to court
Page 411
for an order for sale pursuant to s 60(4)(a). In this application, the applicant was represented by Mr Krishnan Papoo of
Messrs Krishnan Papoo & Associates. In the sale and purchase agreement it was stated in the Schedule that Messrs
Krishnan Papoo & Associates acts as the purchaser's (Ng Sau Kheng's) solicitor for the purpose of the sale and purchase
transaction. In the sale and purchase agreement, Mr Krishnan Papoo attested the signature of the applicant/vendor
(Vicnandan) and also the signature of the purchaser. The applicant did not appoint any solicitor for the purpose of the sale
and purchase transaction but he employed Mr Krishnan Papoo for the purpose of the present application. And it was
Messrs Krishnan Papoo & Associates that filed the present application. The High Court dismissing this application held
that Mr Krishnan Papoo, being the solicitor for the purchaser in the sale and purchase transaction between the
applicant/vendor and the purchaser, legally, cannot represent the applicant/vendor in the present application. Clearly there
is a conflict of interest situation here. He ought to have advised the applicant to engage another solicitor to represent him
for the purpose of the present application.
4 Tan Hiow v Lee Boon Chia (1958) 3 MC 173 where it was held that an administrator has full power to dispose of the
property of the deceased subject to obtaining the leave of the court or of the Land Administrator. For the meaning of 'Court'
see [330.256] note 3. See also Grenier v Ryan (1957) 3 MC 126.
5 See Re Safiah binte Tahar (decd) [1940] MLJ 285; United Overseas Finance Ltd v Victor Sakayamary [1997] 3 SLR 211.
As to power of sale by auction and contract see [330.549].
6 Probate and Administration Act 1959 s 60(4)(a). For the meaning of 'property' see [330.242] note 7.
8 Probate and Administration Act 1959 s 60(6). See Chee Hock Lai v Tan Swee Thai [1990] 3 MLJ 477, where the court
reaffirmed that the Probate and Administration Act 1959 ss 60, 71 require an administrator of an estate to obtain the prior
approval of the court before taking action, failing which any action so taken will become null and void on the application of
any party who has an interest in the matter; Soon Seng Co Sdn Bhd v Toko Palayakat Jamal (M) Sdn Bhd [1999] 6 CLJ
397.In Tan Tock Kwee v Tey Siew Cha, [1995] MLJU 408, [1995] 4 CLJ 658, the first defendant (executor and trustee
under a will) did not obtain an order of the court before executing the charges over certain property in favour of the bank.
Issue arose whether this was tantamount to a contravention of the Probate and Administration Act 1959 s 60(3). The
plaintiffs relied on s 60(6) which provides that such disposal of the property in contravention of s 60 will be voidable at the
instance of any other person interested in the property. The bank claimed that voidability under s 60(6) was cured by
registration under the National Land Code. The High Court held that in the event that an order of the court is required
under the Probate and Administration Act 1959 s 60(3), the issue for consideration was whether the instrument by which
the charges were registered came within the meaning of the National Land Code s 340(2)(b) (which provides that the title
or interest of any such person or body will not be indefeasible where the registration was obtained by means of an
insufficient or void instrument). If the bank knew that the charges were in contravention of the Probate and Administration
Act 1959 s 60(3), then, the bank could not claim to be a 'purchaser in good faith and for valuable consideration' under the
National Land Code s 340(2)(b). In that event, the interests of the bank remain defeasible by virtue of s 340(2)(b).
[330.541]
Additional powers
In addition to the powers of sale and charge1, the personal representative2 has the following powers:
(1) where he is authorised by the instrument, if any, creating the trust or by law to pay or apply
capital money subject to the trust for any purpose or in any manner, he has and is deemed
always to have had power to raise the money required by sale3, conversion, calling in, or
charge4 of all or any part of the trust property for the time being in possession5; and
(2) before giving an assent6 or making a conveyance in favour of any person entitled, he may
permit that person to take possession of the land, and the possession will not prejudicially
affect his right to take or resume possession, nor his power to convey land as if he were in
possession of the land, but subject to the interest of any lessee, tenant7 or occupier in
possession or in actual occupation of the land8.
1 See [330.540].

Page 412
3 Balkis Nachial v Achi Thayar Ammal [1929] SSLR 3.
4 Tan Joo Hern v The Sze Hai Tong Banking & Insurance Co Ltd [1934] MLJ 127 where the power to postpone conversion
and to carry on business and to invest in the business any part of the testator's estate enabled the trustees to carry on
business and to develop it until distribution and that the power to invest any part of the estate in the business included
power to mortgage any part of the trust estate for the purpose of the business. As to the power to carry on the business of
the deceased see [330.553] and following.
5 Trustee Act 1949 (Act 208) s 21(1).
7 Teck Seng & Co v William Eu Keng Yuet [1980] 2 MLJ 115.
[330.542]
Power to concur with others
Where an undivided share in the proceeds of sale of land directed to be sold, or in any other property, is
subject to a trust, or forms part of the estate of a testator or intestate, the trustees1 or personal
representatives2 may (without prejudice to the trust for sale affecting the entirety of the land and the
powers of the trustees for sale in reference to the trust for sale) execute or exercise any trust or power
vested in them in relation to such share in conjunction with the persons entitled to or having power in that
behalf over the other share or shares, and notwithstanding that any one or more of the trustees or
personal representatives may be entitled to or interested in any such other share, either in his or their
own right or in a fiduciary capacity3.
1 As to the commencement of trusteeship see [330.538].
3 Trustee Act 1949 (Act 208) s 29. See De Fonseka v De Fonseka [1971] 2 MLJ 155 where the court held that the power
conferred by the former Trustees Ordinance 1949 (FM Ord 66 of 1949) s 26 (which is in pari materia with the Trustee Act
1949 s 29) applied only so far as a contrary intention was not expressed in the trust instrument and that it had effect
subject to the provision expressed in the trust instrument.
[330.543]
Power in relation to movables
The personal representative1 has always had a complete and absolute control over the deceased's
movable property2, and at any time before he has assented3, he can dispose of the effects, whether they
are legal or equitable4. In the case of an intestate estate5, the personal representative will hold the
movable property6 upon trust to call in, sell and convert into money such part of the property as may not
consist of money with power to postpone the sale and conversion for such a period as the personal
representative, without being liable to account, may think proper, and so that any reversionary interest be
not sold until it falls into possession, unless the personal representative sees special reason for sale7.
2 As to devolution of movable property see [330.476].

Page 413
4 The rule in Howe v Earl of Dartmouth [1802] 7 Ves 137, [1775-1802] All ER Rep 24 applies to personalty (movable
property) where there is a gift by will and the object of the rule is to ensure that wasting property is converted so that
capital beneficiaries who might receive nothing at all are protected while the income beneficiaries earn their share. This
rule does not include specific legacies and does not apply where there is no gift to persons in succession. As to specific
legacies see [330.564].
5 For the meaning of 'intestate' see [330.246] note 5. For the meaning of 'estate' see [330.242] note 3.
7 Probate and Administration Act 1959 (Act 97) s 68(1). Under s 68, the immovable property of the deceased should be
held by his personal representative upon trust to sell the same: see Pang Kim Moi v Pang Ah Kiau, [1997] MLJU 124.
[330.544]
Protection to purchasers and chargees dealing with trustees
No purchaser or chargee dealing with the personal representative1 is concerned to see that the money
paid or advanced on the sale or the charge is wanted, or that no more than is wanted is raised, or
otherwise as to the application of the money2.
2 Trustee Act 1949 (Act 208) s 22. See Re Seet Tiang Lim (decd) [1927] SSLR 40.
[330.545]
Power of trustees to give receipts
The receipt in writing of a trustee1 for any money, securities or other personal property or effects
payable, transferable, or deliverable to him under any trust or power is a sufficient discharge to the
person paying, transferring, or delivering the same and will effectually exonerate him from seeing to the
application or being answerable for any loss or misapplication of the same2.
Notwithstanding anything to the contrary in a disposition on trust for sale of land or in the settlement of
the net proceeds, the proceeds of sale or other capital money arising under the disposition may not be
paid to or applied by the direction of fewer than two persons as trustees of the disposition, except where
the trustee is a trust corporation, but this does not affect the right of a sole personal representative3 as
such to give valid receipts4 for or direct the application of the proceeds of sale or other capital money
aforesaid, nor, except where capital money arises on a transaction, render it necessary to have more
than one trustee5.
2 Trustee Act 1949 (Act 208) s 18(1).
4 If the proceeds of sale are to be employed as capital moneys impressed with the objects of the trust, then they must be
paid to no less than two trustee and no receipt given by one trustee will be a good discharge to a purchaser: Re A Contract
between Wee Poh Neo and Goona Veeragoo Naidoo [1936] MLJ 213.
5 Trustee Act 1949 s 18(3). See Re Tambi bin Osman [1929] SSLR 186.
Page 414
[330.546]
When transaction is impeachable
If the nature of the transaction not affecting a legal estate1 affords intrinsic evidence that the personal
representative2 is not acting in the execution of his duty, but is committing a breach of trust, the
purchaser or chargee holds the property subject to the claims of creditors and beneficiaries. The person
seeking to impeach the validity of the transaction has to prove that the purchaser, mortgagee or chargee
had notice of the true state of facts3.
1 Che Ah and Che Yang Kelsom v Che Ahmad [1941] MLJ 126, CA , where two of the beneficiaries brought to the notice
of the court that their solicitor had received a higher offer. However, generally, whilst the court may have regard to the
interests of the beneficiaries there is no requirement in law that a sale of the property of a deceased's estate must have the
consent of all or even a majority of the beneficiaries: Tan Hock Khoon v Phua Siew Lang (P) [2006] 6 MLJ 645, CA .
3 In Loo Thing Soo v Idris bin Salleh (1955) 3 MC 56, it was held that the conveyance by the administratrix was not
fraudulent and that the defendant being a purchaser for value without notice, acquired a good title.
[330.547]
Representative may not sell to himself
The personal representative1 may not without the sanction of the court, sell to himself either directly or
indirectly. If he does so sell to himself any part of the property of the deceased, the sale is voidable2 at
the instance of any other person interested in the property sold3, as he is subject to the equitable
doctrine that any person in a fiduciary capacity must not make any personal profits out of property in
regard to which the fiduciary relationship exists4.
A sale by an executor5 or trustee6 to his spouse raises a strong presumption against the validity of the
sale which may be rebutted by evidence of the independent action of the spouse7.
The mere fact of a person being named in a will as an executor does not prevent him from purchasing
the testator's property, if he has never taken upon himself the duties of executor or trustee, unless he
makes use of his position in order to commit a fraud8.
However, when an administrator9 contracts in his own name to sell land belonging to the estate, he is
under an obligation to do all he can to obtain the approval of the court and carry out the sale. If he fails to
do all he can he is guilty of breach of contract10.
2 See Abdul Wahab bin Abdul Rauf v Haji Wahab bin Haji Mohamed [1940] MLJ 14 where it was held that if a trustee for
sale of one estate sells part of the estate property to himself and another as trustees of another estate, the transaction is
usually bound to be under the same suspicion of favouritism as if he were selling to himself personally and any person
interested in the trust property is entitled to ask the court that such conveyance should be set aside as a breach of trust.
As to when a transaction is impeachable see [330.546].
3 Probate and Administration Act 1959 (Act 97) s 61. For the meaning of 'property' see [330.242] note 7.
4 Tan Kim Neo v Tan Teck Bee [1955] MLJ 30, CA .

Page 415
8 Yeo Kian Guan v Seah Liang Seah (1890) 4 Ky 590.
10 Lim Yew Soon v Gan Chye Neo [1908] 2 FMSLR 5, CA .
[330.548]
Power to grant lease
A personal representative1 may lease all or any property2 vested in him, as he may think proper subject
to any restriction which may imposed in this behalf by the will3 of the deceased4. An administrator5 may
not, without the previous permission of the court6 lease any such property for a term exceeding five
years7.
4 Probate and Administration Act 1959 (Act 97) s 60(3). See Re Ramanathan s/o AR A Nachiappan (Administrator De
7 Probate and Administration Act 1959 s 60(4)(b). See Amina binti Mohamad v Teh Aik Peng [1930] 7 FMSLR 154, CA ,
where a lease was granted by an administrator for less than five years followed by an agreement to grant a reversionary
lease which, when added to the unexpired residue of the first lease, exceeded five years, the reversionary lease was held
to be voidable; Re Lua Kin Suai [1998] 7 MLJ 258.
[330.549]
Power of sale by auction and contract
Where a trust for sale or a power of sale of property is vested in a trustee1, he may sell2 or concur3 with
any other person in selling all or any part of the property, either subject to prior charges or not, and either
together or in lots by public auction or by private contract, subject to any such conditions4 respecting title
or evidence of title or other matter as the trustee thinks fit, with power to vary any contract for sale, or to
rescind any contract for sale and to resell, without being answerable for any loss5. Such power of sale of
land includes a trust or power to sell or dispose of part of the land, whether the division is horizontal,
vertical or made in any other way6.
2 As to the power to sell see [330.540].
3 As to the power to concur with others see [330.542].
4 Cheng Kwee Siong v Cheng Kwee [1997] 1 SLR 593, where a compromise of a huge commission to one of the
beneficiaries in the sale of the deceased's property by the executors and trustees which commission was subject to the
consent of the beneficiaries was not enforceable.
Page 416
5 Trustee Act 1949 (Act 208) s 16(1).
[330.550]
Power to sell subject to depreciatory conditions
A sale1 by a personal representative2 cannot be impeached3 by a beneficiary upon the ground that any
of the conditions of sale were unnecessarily depreciatory, unless it also appears that the consideration
for the sale was thereby rendered inadequate4. After execution of the conveyance, in order to impeach
the sale for unnecessarily depreciatory conditions, it must be shown that the purchaser was acting in
collusion with the personal representative at the time when the contract for sale was made5. No
purchaser, upon any sale made by a personal representative, is at liberty to make any objection against
the title upon any of the grounds aforesaid6.
1 As to the power of sale by auction and contract see [330.549].
3 As to when a transaction is impeachable see [330.546].
4 Trustee Act 1949 (Act 208) s 17(1).
[330.551]
Power to insure
The statutory authority to insure1 conferred on the personal representative2 cannot be exercised where
he is bound forthwith to convey the property absolutely to a beneficiary upon being requested to do so3.
[330.552]
Power of action against tenants
Executors1 and administrators2 have the power of distress for arrears of rent accrued during the lifetime3
of the deceased4.
All proving executors must join as plaintiffs in a suit to recover possession of a testator's property5 and if
they do not consent, as defendants6.
Page 417
1 See [330.243], [330.244].
2 See [330.245].
3 See Alagappa Chettiar v Kader [1939] MLJ 304 where it was held that a periodic tenancy, on the death of a tenant,
devolves on his personal representatives.
4 Fong Chong Cheng v The Public Trustee [1967] 2 MLJ 262, [1965-1968] SLR 278, FC (Sing) , where it was held that no
hardship or injustice would have been caused to the administrator whose claim for arrears of rent was time barred.
5 S Rengasamy Pillay v Sadhu Pakirswamy [1937] MLJ 77, CA .
6 Lee Han Tiong v Tay Yok Swee [1997] 1 SLR 289.

Page 418
Powers of the Representative/ (iii) Power to Carry on the Deceased's Business
(iii) Power to Carry on the Deceased's Business
[330.553]
Power to carry on the business of the deceased
In the absence of express power in the will of the deceased, an executor1 carries on the business at his
own risk2. Where there is a direction in the will of the deceased to carry on the business, the executor
does so taking note3, if any of any wasting asset which would be prudent in normal circumstances to
dispose of, and then reinvest or distribute the proceeds. The executor should only carry on the business
of the deceased where it is not losing money4, notwithstanding the direction of the testator. Such
carrying on is subject to the equitable doctrine that any person in a fiduciary capacity is not allowed to
make a profit out of property in regard to which the fiduciary relationship exists5.
However, where an administrator6 is trustee7 of the assets of the deceased and obtains documents in
his own name authorising him to continue to work on such assets, he is a trustee of the profits so derived
from such assets for the beneficiaries8.
2 Ahmed Angullia; bin Hajee Mohamed; Salleh Angullia v Estate and Trust Agencies (1927) Ltd [1938] MLJ 185, PC .
3 Teh Seow Teng v Yap Tai Chi [1912] 1 FMSLR 92, CA ; Balkis Nachial v Achi Thayar Ammal [1929] SSLR 3.
4 Bank Bumiputra Malaysia Bhd v Yap Kiow Moi [1973] 2 MLJ 104. See also Saraspathy v Kanagasundram [1962] MLJ
422, CA .
5 Tan Kim Neo v Tan Teck Bee [1955] MLJ 30, CA .
6 See [330.245].
8 Ng Ah Kiang v Foo Choo Choon [1908] 1 FMSLR 36, CA .
[330.554]
Borrowing powers
Although statutory provision permits an administrator1 to mortgage or charge any immovable property2
for the time being vested in him with the sanction of the court3, an administrator in the course of the
administration of the estate of the deceased who had died intestate cannot charge part of the estate's
assets to purchase a business in which the deceased had no financial interest at the time of his death.
The administrator commits a breach of trust with such purchase and the court will not approve an order
founded on a breach of trust4 and neither will the court find for an administrator who borrows money on a
promissory note and binds the estate5.
Where the executors6 of the estate of a deceased person enter into a contract for overdraft facilities7 for
the purpose to carry on the business of the testator8, the executors are personally liable for the contract9
Page 419
that they enter into after the death of the deceased and the lender has no remedy against the estate10.
2 As to the devolution of immovable property see [330.477]. For the meaning of 'property' see [330.242] note 7.
3 See the Probate and Administration Act 1959 (Act 97) s 60(4)(a) and [330.540].
4 Hee Yong Wah v Hee Keng Thiam (1956) 3 MC 82. As to when a transaction is impeachable see [330.546].
5 Sarathambal v Supramaniam Chetty [1922] 3 FMSLR 87, CA .
6 See [330.243], [330.244].
7 Overseas Union Finance Ltd v Lim Joo Chong [1971] 2 MLJ 124, where neither the will nor the law confers powers on
the executor to charge land the charge is void.
8 As to the power to carry on the business of the testator see [330.553].
9 See Cheah Wong Nyan v Palaniappa [1935] MLJ 31.
10 Bank Bumiputra Malaysia Bhd v Yap Kiow Moi [1973] 2 MLJ 104.
[330.555]
Representatives' liability and right to indemnity
An executor1 who has power under the will to carry on the testator's business2, but who enters into an
agreement to sell the business has no further power to carry on the business and, if he does so, he
commits a breach of trust3. In respect of liabilities incurred in doing so the executor has no right to be
indemnified out of the assets and no right to resort to such assets by way of sale to recoup himself, the
fact that the legal estate in the assets remains vested in the executor being immaterial. Where the
executor carries on the testator's business for the sole purpose that it is a going-on concern, he is not
entitled to a complete and unlimited indemnity but only to an indemnity over and against the assets
employed in the business4 or out of the assets of the trust5.
1 See [330.243], [330.244].
2 As to the power to carry on the business of the testator see [330.553].
3 See Bank Bumiputra Malaysia Bhd v Yap Kiow Moi [1973] 2 MLJ 104. As to when a transaction is impeachable see
[330.546].
5 Rigold Bergmann & Co v Wong Peng Lam [1901] 6 SSLR 90.

Page 420
Powers of the Representative/ (iv) Power to Compromise
(iv) Power to Compromise
[330.556]
Compromise of claims
A personal representative1, or two or more trustees2 acting together, or a sole acting trustee where by
the instrument if any, creating the trust, or by written law, a sole trustee is authorised to execute the trust
and powers reposed in him, may, if and as he or they think fit compromise claims3 relating to the
testator's or intestate's estate or to the trust, and for this purpose may enter into give, execute and do
such agreements, instruments of composition or arrangement, releases, and other things as to him or
them seem expedient, without being responsible for any loss occasioned by any act or thing so done by
him or them in good faith4.
3 Trustee Act 1949 (Act 208) s 19(f). See The Singapore Improvement Trust v Syed Ahmed bin Mohamed bin Ali Aljunied
[1935] MLJ 170.
4 Trustee Act 1949 s 19.
[330.557]
Power to deposit at bank and to pay calls
Trustees1 may, pending the negotiation and preparation of any charge, or during any other time while an
investment is being sought for, pay any trust money into a bank to a deposit or other account and all
interest, if any payable in respect of the trust money will be applied as income2.
2 Trustee Act 1949 (Act 208) s 15(1).

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Powers of the Representative/ (v) Power to Pay into Court
(v) Power to Pay into Court
[330.558]
Statutory right to pay into court
Personal representatives1 have a statutory right to pay money or securities belonging to their trust into
court2. The receipt3 or certificate of the proper officer will be a sufficient discharge4. Where a majority of
the personal representatives are desirous of making the payment into court, but the concurrence of the
others cannot be obtained, the court may order the payment into court to be made without the
concurrence of the minority5. Where any such money or securities are deposited with any bank, broker
or other depositary, the court may order payment or delivery to the majority for the purpose of payment
into court6.
The court will not order money to be paid into court by trustees7, executors8 or administrators9 unless
there are admissions that the money is actually in their hands and that it is not sufficient that the money
has been in their hands10.
3 In Re Syed Ahmed Hood Alsagoff (decd) [1961] MLJ 150, CA (Sing) , it was held that mere constructive receipt by an
agent or solicitor is not enough.
4 Trustee Act 1949 s 65(2). See Koh Swee Guat v Koh Kim Han (1930) 1 MC 74.
10 Palaniappa Chitty v Ravena Mana Maiyammai Achi [1948] MLJ 150, CA (Sing) .
[330.559]
Practice of paying into court
Payment by personal representatives into court1 is, subject to the law relating to civil procedure2 and
dealt with according to the orders of the court3.
2 See generally CIVIL PROCEDURE (2014 Reissue).

Page 422
3 Trustee Act 1949 (Act 208) s 65(1). See Re Syed Ahmed Hood Alsagoff (decd) [1961] MLJ 150, CA (Sing) .
Page 423
Powers of the Representative/ (vi) Power to Employ Agents
(vi) Power to Employ Agents
[330.560]
Power to employ agents and pay agents
Instead of acting personally, personal representatives1 may employ and pay an agent, whether a
solicitor, banker, stockbroker, or other person, to transact any business or do any act required to be
transacted or done in the administration of the testator's or intestate's estate, including the receipt2 and
payment of money. They are entitled to be allowed and paid all charges and expenses incurred and are
not responsible for the default of any such agent properly employed in good faith3.
Personal representatives may also appoint any person to act as their agent or attorney for the purpose of
selling4, converting, collecting, getting in, and executing and perfecting assurances of, or managing or
cultivating, or otherwise administering any property, movable5 or immovable, subject to the trust or
forming part of the testator's or intestate's estate in any place outside Malaysia or executing or exercising
any discretion or trust or power vested in them in relation to any such property, with such ancillary
powers, and with and subject to such provisions and restrictions as they may think fit, including a power
to appoint substitutes, and are not, by reason only of their having made such appointment, be
responsible for any loss arising by such appointment6.
Personal representatives have the same powers as trustees7 with reference to the appointment of
solicitors to receive and give discharges for money or valuable consideration or property receivable by
them8; and in relation to the appointment of bankers or solicitors to receive and give discharges for
money payable under insurance policies9.
2 As to the power to give receipts see [330.545].
3 Trustee Act 1949 (Act 208) s 28(1).
5 As to the power in relation to movables see [330.543].
8 Trustee Act 1949 s 28(3)(a)(i).
9 Trustee Act 1949 s 28(3)(a)(iii). As to insurance policies see generally [490] INSURANCE (2011 Reissue).
[330.561]
Representative's liability
A personal representative1 is not chargeable with breach of trust by reason only of his having made or
Page 424
concurred in making any appointment of a solicitor to be his agent2. However, a personal representative
is not exempted from liability3, if he permits any money, valuable consideration, or property receivable by
him to remain in the hands or under the control of the banker or solicitor for a period longer than is
reasonably necessary to enable the banker or solicitor, as the case may be, to pay or transfer the same
to him4.
2 Trustee Act 1949 (Act 208) s 28(3)(a)(ii). As to the power to employ agents see [330.560].
3 See A-G v Ching Kwong Yew [1993] 2 SLR 225, CA (Sing) , where the executors had fallen short of discharging their
responsibilities as executors to take such reasonable steps as were within their means to trace the two sums being
proceeds of sale of the deceased's shares in two companies.
4 Trustee Act 1949 s 28(3)(a) proviso.

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Powers of the Representative/ (vii) Survivorship of Powers
(vii) Survivorship of Powers
[330.562]
Statutory survivorship
In the absence of a contrary direction1 in the will, there is statutory provision for the survivor or survivors
to exercise powers or trusts given to or imposed on two or more personal representatives2.
2 See the Trustee Act 1949 (Act 208) s 40(1)(b). As to personal representatives see [330.242] and following.
Page 426
Administration and Succession/(2) Executors and Administrators/(5) Distribution of Assets/ A. Legacies and
Annuities/ (i) Classification of Legacies
(5) DISTRIBUTION OF ASSETS

A. LEGACIES AND ANNUITIES
(i) Classification of Legacies
[330.563]
General principle
An administrator1of a person who died intestate may distribute the estate according to recognised law2
whereas an executor3 of a will must distribute the estate according to the terms of the will4. However, the
beneficiaries of the estate are of course entitled to give up or renounce their rights or entitlement in the
property of the deceased if they so wish5.
Where a personal representative6 is issued with the grant of letters of administration, he should apply to
the court for leave to distribute or transfer7 but not for a vesting order8, whereas an executor who is
armed with a grant of probate with the will annexed9 need not make such application as his authority to
distribute derives from the will10.
2 As to intestate succession see [330.645] and following. See also Harinder Singh v Futuristic Builders Sdn Bhd [2006] 2
CLJ 272, CA (see [330.498] note 3).
3 See [330.243], [330.244].
4 Hsu Yik Chai v Hsu Yaw Tang [1982] 2 MLJ 227, FC .
5 In Paramanantham s/o MV Kandiah v Ganakiamah d/o Sabapathi Pillay [2009] 8 MLJ 600, issue arose as to whether a
letter of renunciation and consent executed by the plaintiffs and three others could be construed as an agreement by the
signatories to renounce all their rights to their share in the proceeds of the sale of the property as per their entitlement
under the Distribution Act 1958 (Act 300) and to have their shares transferred in the name of the defendant absolutely or
whether, despite the execution of the letter of renunciation and consent and the order, the defendant was still holding the
property of the deceased as a representative of the estate. It was held that the letter of renunciation and consent recorded
that the undersigned, in consideration of natural love and affection for the defendant gave up and renounced all their rights
in the property of the deceased. The language, in consideration of natural love and affection would not have arisen if the
transfer and conveyance was to the defendant as administrator only. The intent and effect of the two documents were very
plain and clear. The court also held that the fact that no mention was made of the proceeds of sale of the property did not,
in an objective consideration, render questionable the nature of the transfer and conveyance to the defendant.
7 An administrator must obtain the previous permission of the court to deal with the distribution or transfer of the
immovable property of the estate: Probate and Administration Act 1959 (Act 97) s 60(4); see Re Ramanathan s/o AR A
Nachiappan (Administrator De Bonis Non with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998]
2 MLJ 90; Re Lua Kin Suai [1998] 7 MLJ 258. In Ong Thye Peng v Loo Choo Teng [2004] 3 MLJ 201, CA , the court held
that the accepted principles adopted by the courts on an application for leave to sell a deceased estate are established in
decided cases. Be that as it may, the facts might vary from case to case and therefore, they could be distinguished. It is
unwise to apply the principles established as a straightjacket.
8 In Re Estate of Teoh Cheow Choon (decd) [1994] 3 AMR 2438, it was held that a vesting order is applicable only in
probate and administration cases where it is uncertain who is the (or there is no) personal representative of a deceased
trustee or deceased chargee. The National Land Code (Act No 56 of 1965) s 420 (as amended by the Federal Territory of
Labuan (Extension and Modification of National Land Code) Order 2009 (PU (A) 454/2009) does not require the executor
Page 427
or administrator to seek vesting orders from the court for the transfer of the land or immovables to the beneficiaries.
However, the Probate and Administration Act 1959 s 72(1), (2) explicitly makes a vesting order a requirement to enable a
transfer of immovable property from the personal representative to the beneficiary. This provision should be amended for
clarification purposes as an executor does not need to apply for leave to transfer land unless he intends to effect a transfer
contrary to the will and in the light that vesting orders are primarily applicable by survivors of joint tenants or beneficiaries
under the Trustee Act 1949 (Act 208) ss 48(a)-(h), 50, 52, 54, 55, 57, 58. As to the court's power to make a vesting order
or appoint a person to convey land see the Trustee Act 1949 s 48.In Re Yap Boon Eng [2001] 6 MLJ 442, the court held
referring to Re Teoh Cheow Choon (decd) (above) that an application for a vesting order is rarely a correct procedure to
adopt in probate and administration cases except in cases where eg it is uncertain who is (or there is no) personal
representative of a deceased trustee or a deceased chargee. It was further held that, 'it is trite law that there is no
necessity for the executor to apply for leave to transfer land unless what he intends to effect goes against any restrictions
in the will of the deceased it is improper for either an executor or administrator to apply for a vesting order. The National
Land Code s 420 was held to merely prescribe that no order vesting any alienated or any share or interest therein, in any
person or body will affect the land, share or interest in question until it has been registered pursuant to that section, and
nothing else. This provision contains nothing which could be construed as permitting the executor or administrator to seek
vesting orders'. It was further held in Re Yap Boon Eng (above) per Jeffrey Tan J at 447: 'Whereas s 420 could not be
construed as permitting the executor or administrator to seek vesting orders, the Probate and Administration Act 1959 s
72, which provides that a personal representative may assent to the vesting in any person who (whether by devise,
bequest, devolution, appropriation or otherwise) may be entitled thereto, either beneficially or as trustee or personal
representative, of any immovable property to which the testator or intestate was entitled or over which he exercised a
general power of appointment by his will, and which devolved upon his personal representative , could not be construed as
necessarily requiring the executor in his other capacity as trustee to seek vesting orders in order to execute the will'.
9 The Probate and Administration Act 1959 s 17 provides that in any case where administration with the will annexed is
granted the will of a deceased is performed and observed in a like manner as if probate of the will had been granted to an
executor. It follows that no leave of the court to sell property of the deceased is required under s 60(4); see Re
Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will annexed, of the Estate of K AL RM
10 See Re Lim Yew Teok (decd), British and Malayan Trustees Ltd v Chng Kiat Leng [1966] 2 MLJ 260, [1965-1968] SLR
475 where upon the true construction of the will on the death of the next-of-kin of the next-of-kin of a residuary legatee who
has enjoyed shares of income under the will, the shares of income enjoyed by him pass to such of his next-of-kin as
belong to the stirps of the original residuary legatee.
[330.564]
Specific legacies
A specific legacy1 must be some gift of definition and certainty or distinguishable from the whole of the
testator's estate or from the whole of the general residue of his personal estate. Such legacy must be in
existence at the time of the testator's death; otherwise the terms2 of the gift have to be determined at the
time when the will was made. In the absence of specific instruction, the gift not in existence is said to be
adeemed3.
1 'Specific legacy' means a legacy of specified property: Probate and Administration Act 1959 (Act 97) s 2.
2 In Re Abdullah Saleh Shooker (decd) [1948] Supp MLJ 88, the executors applied to court for the determination of
whether interest was payable on a legacy under the will of the deceased.
3 In Lim Soo Siam v Leow Yong Moey [1933] 2 MLJ 214 it was held that the legacy to the testator's daughter was partially
adeemed during the testator's lifetime to the extent that the testator's daughter's marriage expenses were paid by the
testator himself and that the balance of the legacy should be paid to her for her sole use. As to ademption see [330.642],
[330.643].
[330.565]
General legacies
A general legacy1 is a gift arising from the general personal estate of the testator and has no application
Page 428
to the distribution of property to the persons entitled on an intestacy2. The construction of the will of the
deceased determines whether or not the gift is separate from the general personal estate of the
deceased3. A legacy which is in its nature general is not entitled to any exemption from abatement on
the ground that it is applied to any particular object or purpose4. Such legacy is said to be abated if the
fund out of which the legacy was to have been paid has been exhausted5.
1 A general legacy is included in the definition of 'pecuniary legacy'; see [330.527].
2 Soo Bian Joo v Soo Boon Leong (1958) 3 MC 236.
3 Shanti Rupchand Binwani alias Shanti v Udharam Dayaram Binwani [1951] MLJ 31.
4 Tan Boon Soo v Choa En Seng SLR Leic 406. As to abatement see [330.592]-[330.594].
5 As to abatement of general legacies see [330.592].
[330.566]
Demonstrative legacies
A demonstrative legacy consists of a pecuniary legacy1 payable out of a named fund. When a legacy is
payable at a certain time, but is in terms contingent, the legacy becomes vested2 when there is a
direction to pay the interest in the meantime to the person to whom the legacy is given3.
1 It is a legacy comprising of money. For the meaning of 'pecuniary legacy' see [330.527]. See also Re Sevatha Vappoo
Maricar (decd) [1940] MLJ 65, where the court held that the residuary legatees should receive the gift in their character of
residuary legatees.
2 Woon Hong Chin v Chin Choo Lian [1930] SSLR 3; Re Choong Cheng Kean (decd) [1937] MLJ 175, [1937] SSLR 143.
3 Re Noormohamed Virjibah Velmohamed (decd), Sakker Khanu Noormohamed Merchant v Malek Sultan Calcuttawala
[1958] MLJ 217.
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Annuities/ (ii) Payment
(ii) Payment
[330.567]
Payment within the executor's year
A personal representative1 is not bound to distribute the deceased's estate before the expiration of one
year from the death2.
The executor3 has a year within which to inform himself fully of the state of the testator's property4.
During that period he cannot be required to pay any legacies even though they are expressly directed by
the testator to be payable within the year, but he is entitled to pay them within the year if he chooses.
2 Probate and Administration Act 1959 (Act 97) s 77. See also [330.504].
4 As to the payment of debts see [330.509] and following.
[330.568]
Pending proceedings for family provision
A personal representative1 distributes the estate at his own risk if proceedings are pending for family
provision2, or if the period of six months from the grant of representation during which an application for
family provision must normally be made3, is not yet expired and there is a possibility or an expectation
that an application may be made4.
2 As to family provision see [330.617] and following.
3 See the Inheritance (Family Provision) Act 1971 (Act 39) s 4(1).
4 See the Inheritance (Family Provision) Act 1971 s 4(3).
[330.569]
Adopted and illegitimate children
In relation to the administration of estates, a personal representative1 is not under a duty, by virtue of the
law2, to inquire before conveying and distributing any property, whether any adoption order has been
made, or any person is illegitimate, or is adopted by one of his natural parents and could be legitimated3
Page 430
and if that fact could affect entitlement to property. He is not liable to any such person of whose claim he
has not had notice at the time of the conveyance or distribution. This provision, however, does not
prejudice the right of any such person to follow the property, or any property representing it, into the
hands of any person, other than a purchaser, who may have received it4.
2 Ie the Adoption Act 1952 (Act 257) and the Legitimacy Act 1961 (Act 60).
3 See the Legitimacy Act 1961 ss 4, 5. See also Shamugam v Pappah [1994] 1 MLJ 144.
[330.570]
Receipts and discharge of personal representatives
A receipt or an acknowledgement of receipt from the legatee upon payment of a legacy1 should be
sufficient discharge2 to an executor3. Upon the distribution of the residuary estate4, personal
representatives5 are entitled to be discharged, either by way of formal release under seal containing
proper recitals to be executed by the persons entitled to the residue, or the beneficiaries entitled to the
residuary estate merely sign the residuary accounts6.
Where the personal representative has distributed the estate in accordance with his duty as a personal
representative, but is unable to dispose of certain funds due to the fact that the person entitled to the
same cannot give him a valid receipt for such funds, the personal representative is allowed to wind up
the deceased's estate and discharge himself from his obligations upon the Corporation7 consenting to
take over the funds allowing the personal representative to be released from his liability in respect of the
same8.
1 As to legacies see [330.563]-[330.566].
2 An infant beneficiary who has a foreign domicile may give a good discharge for his share of the estate to the
administrator of the estate, if he is of full age according to the law of his domicile: see Re Abdul Salam (decd), Abdul
Razak v Kasi Mohamed Shirazil Anwar [1938] MLJ 83; Gan Ngoh Bee v Official Assignee (1913) 2 BLSS 346, PC ; Re
Kavena Hadjee Mohamed Yoosuf (decd), Estate & Trust Agencies (1927) Ltd v Fatimah Sham binte Hadji Sahib [1936]
MLJ 78, which held that when a common account is ordered, if trustees seek to discharge themselves by payments which
would amount to breach of trust, such payments may be falsified and will be disallowed, notwithstanding that no breach of
trust has been specifically pleaded. See also the Public Trust Corporation Act 1995 (Act 532) s 19.
4 Where the residuary estate has not been ascertained and the administration of the estate is incomplete, none of the
beneficiaries of the estate has any interest in any specific property of the estate: see Punca Klasik Sdn Bhd v Foh Chong
& Sons Sdn Bhd [1998] 1 CLJ 601.
6 In Siow Hon v Siow Koon Chia [1927] 7 FMSLR 36, the defendant failed to have the accounts examined by the Registrar
and the result of the examination certified to the court and therefore, his discharge never took effect as a final and effective
order.
7 For the meaning of 'Corporation' see [330.247] note 1.

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[330.571]
Annuities
An annuity1 is the provision for periodic payment of money from a testator's estate2, either payable out of
the income of the estate or charged on the corpus3 of the residuary estate4. In the absence of any
direction in the will to the contrary, an annuity prima facie runs from the testator's death and is payable
up to such date as directed in the will, or in the absence of such direction to the legatee for life5.
1 'Annuities' includes salaries and pensions: Civil Law Act 1956 (Act 67) s 16A.
2 In Lim Kwan Kee v Kwan See [1955] MLJ 219, CA , the court held that the payment made for an agreed share in an
estate was not an annuity.
3 In Re Syed Hashim bin Kassim (decd) [1936] MLJ 199, the costs of permanent improvements were payable wholly out of
capital moneys; in Re Wan Eng Kiat (decd) [1940] MLJ 63, the court held that the intention of the testator as inferred from
the terms of the particular will was the governing factor and that expenditure for sanitary installations was to be charged
against income not against corpus and that legal expenses incurred by the trustees in the course of their general
administration of the estate should also be paid for out of income; in Syed Omar bin Shaikh Alkaff v Syed Abrulrahman bin
Shaikh Alkaff [1946] MLJ 63, PC , it was held that upon the true construction of the settlement the whole of the expenditure
spent on improvements to the settled property should be charged to income exclusively and that the trustees of the
settlement were not entitled to recoup income out of corpus in respect of the said expenditure.
4 Lim Soo Siam v Leow Yong Moey [1933] 2 MLJ 214.
5 Low Cheng Soon v Low Chin Piow [1932] MLJ 15; Estate of Lee Choon Guan (decd); Tan Teck Neo v George Tan
[1949] MLJ 299, PC .
[330.572]
Contingent legacies
The right of a contingent legatee is limited in a manner similar to that of an annuitant1 and his only right
is to have security for the payment of his legacy if the contingency arises2.
1 See [330.571].
2 Re Choong Cheng Kean (decd) [1937] MLJ 175.
[330.573]
Preservation of specific legacies
An executor1 should, so far as possible, preserve articles specifically bequeathed2. The cost of getting in
a legacy specifically bequeathed ought to be borne by the general estate, but the cost of warehousing
and preserving articles specifically bequeathed, pending an assent3, in the absence of a direction to the
contrary in the will of the deceased, ought to be borne by the specific legatee4.
Where there are difficulties in the interpretation of the will5 of the deceased, the general estate will bear
the costs incurred in relation thereto. However, if legal proceedings affecting the trust estate are the
result of the serious misconduct or gross negligence of the personal representatives6 or where
unnecessary proceedings are begun as the direct result of such gross negligence, the personal
representatives must pay all these costs personally because all these costs have been occasioned by
their own gross negligence in the discharge of their fiduciary duties7. Where the estate assets are in
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danger, a legatee can obtain an order for the administration of the estate8.
4 The normal practice is that a transferee of shares bears the cost of transfer, and it would seem that such cost is to be
borne by the legatee. See the Trustee Act 1949 (Act 208) s 17.
7 See [330.536].
8 Re H Somapah (decd) [1946] MLJ 25.
[330.574]
Payment of vested gift not to be postponed
In the case of a vested interest1, where the condition to be fulfilled is the attaining of a specific age as
stated in the will of the deceased, the condition may be disregarded and the legacy paid over as soon as
the legatee becomes sui juris, but a legatee is not entitled to payment upon becoming sui juris where
some other condition upon which the payment is conditional has not been fulfilled2.
1 See Re Ong Lai (decd), Ong Thian Ee v Tan Tian Tee [1948-1949] Supp MLJ 1.
2 Shanti Rupchand Binwani alias Shanti v Udharam Dayaram Binwani [1951] MLJ 31.
[330.575]
Limitation of proceedings for recovery
Subject to specified provisions relating to the limitation of actions in respect of trust property1, no action
in respect of any claim to the personal estate of a deceased person may be brought after the expiration
of 12 years from the date when the right accrued2.
1 Ie the Limitation Act 1953 (Act 254) s 22.
2 Limitation Act 1953 s 23. As to limitation of actions see [330.750] and following.
[330.576]
Payment of legacy to bankrupt or lunatic
The Director General of Insolvency1 may deal with any property to which a bankrupt is beneficially
entitled sui juris, or other owner of an estate of inheritance less than an estate in perpetuity, in the same
manner as the bankrupt might have dealt with it2. Payment of a legacy cannot safely be made to a
Page 433
person known to the executor3 to be suffering from mental disorder4.
1 See [300.254] note 8.
2 Bankruptcy Act 1967 (Act 360) s 60(e). As to bankruptcy see generally [170] BANKRUPTCY (2012 Reissue).
4 See the Mental Health Act 2001 (Act 615) .
[330.577]
Practice of court
It is a well-established practice of the court that whenever there is a trust to make annual payments out
of the income of property and the income is larger than is required for the purpose, the court will sanction
the setting aside and retention of so much of the corpus of the property as will be sufficient by its income
to meet the annual payments1 in every contingency that is reasonably possible, and will permit the
distribution of the rest of the corpus among the persons, who subject to the payment of the annual sums,
are absolutely entitled to it2.
1 Re Al Kaf Settlement [1957] MLJ 119.
2 Khaw Joo Jeang v Khaw Joo Chye [1942] AIR 28, PC .

Page 434
Annuities/ (iii) Legacies to Debtors
(iii) Legacies to Debtors
[330.578]
General legatee must bring debt into account
Where the legatee of a general legacy1 or share of residue is a debtor to the estate, he is not entitled to
receive his legacy without bringing his debt into account. This principle where the debtor has to make
good what he owes before claiming his entitlement under the estate2, applies also in the case where the
specific legacy3 is represented by a sum of money in the hands of the executor4, or in the case of a
debtor claiming a distributive share of the estate under an intestacy or even though the legacy has been
incumbered5. It is not applicable where a legacy has been appropriated6 by the executor for the legatee
or where the legacy is, but the debt is not, immediately payable.
2 Lam Kin Sang v Cheang Kok Sang [1930] SSLR 249.
5 Ewe Keok Neoh v Ng Aun Thye [1934] MLJ 23, PC , where it was held that when a beneficiary has transferred to
mortgagees the whole of his interest in the estate, any right to account which he might otherwise have had against the
executor can only be enforced by the mortgagees.
6 As to appropriation see [330.638] and following.
[330.579]
Effect of legatee's bankruptcy
Where a legatee has become a bankrupt in the testator's lifetime the right to have debts brought into
account cannot be exercised by the executor1, except to the extent of a dividend or composition payable
in the bankruptcy2. Where the legatee's bankruptcy is subsequent to the testator's death, the right can be
exercised in full unless the executor has chosen to prove in the bankruptcy3.
2 Re Chop Cheong Joo ex p Heap Thai Cheng [1934] MLJ 201. As to bankruptcy see generally [170] BANKRUPTCY (2012
Reissue).
3 In Re Wee Guan Ho (decd) [1940] MLJ 212, the court held that the petitioner who claimed his interest as the son of the
residuary legatee under the deceased's will, had no interest and could not obtain a grant. In this case the residuary legatee
was an undisclosed bankrupt when he died and all his assets were vested in the Official Assignee (now known as the
Director General of Insolvency: see [330.254] note 8) and the petitioner had concealed this and other material facts from
the court.
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Annuities/ (iv) Legacies to Executors
(iv) Legacies to Executors
[330.580]
Presumption that legacy is given to executors
It is presumed that a legacy to a person appointed executor1 is given to him on condition that he acts as
executor, and it is on him to show something in the nature of the legacy, or other circumstances arising
in the will to rebut that presumption, if he does not act as executor and yet claims the legacy2. It is
sufficient for an executor to be entitled to a legacy if he has in fact done something showing an intention
to act as executor3 even though he has not proved the will. Where an executor who has proved the will
and acted in the administration of the estate, renounces the trusteeship4 after administration, he is
nevertheless entitled to a legacy given on condition that he proves the will and accepts the trusteeship.
1 As to the appointment of executors see [330.248] and following. As to executors see [330.243], [330.244].
2 As to when an executor is entitled to a legacy see [330.581].
3 See Noor Mahomed Merican v Nacodah Merican (1885) 4 Ky 88.
[330.581]
When executor is entitled to a legacy
A legacy to an executor1, although attached to the office of the executor, stands upon the same footing
as ordinary legacies2. In winding-up an estate, if the amount bequeathed to the executor is equivalent to
the executor's commission, the legacy is a satisfaction for the commission and the executor is not
entitled to both commission and the legacy, but is bound to elect3.
1 As to the presumption that a legacy is given to an executor see [330.580]. As to executors see [330.243], [330.244].
2 Ong Cheng Neo v Yeap Cheah Neo (1872) 1 Ky 326 where the Privy Council held that the specified sum of money
directed by the testatrix to be lent to the executors for 40 years at a specified rate of interest and to be renewed from time
to time was a legacy to the executors.
3 Re William Russell (1813) 2 Ky Ecc 6.

Page 436
Annuities/ (v) Legacies to Minors
(v) Legacies to Minors
[330.582]
Payment of legacy to minor
In the absence of an express direction in the will, an executor1 cannot safely pay a legacy to a minor until
the minor attains his majority2. On the appointment of a trust corporation or trustees3 during the minority,
the personal representatives4 as such are discharged5 from all further liability in respect of the devise,
legacy, residue or share for the minor and subject to the power to dispose of property6, may execute or
do any assurance or thing requisite for vesting such devise, legacy, residue or share in the trustee or
trustees so appointed7.
3 See [330.583].
5 See [330.584].
6 See the Probate and Administration Act 1959 (Act 97) s 60. For the meaning of 'property' see [330.242] note 7.
[330.583]
Appointment of trustees
Where a minor is absolutely entitled1 under the will2 or on the intestacy of the deceased, to a devise or
legacy or to the residue of the estate of the deceased, or any share in the estate, and the devise, legacy,
residue or share is not under the will, if any, of the deceased, devised or bequeathed to trustees for the
minor, the personal representatives3 of the deceased may appoint a trust corporation or two or more
individuals not exceeding four4 (whether or not including the personal representatives or one or more of
the personal representatives), to be the trustee or trustees of the devise, residue or share of the minor,
and may, subject to the power to dispose of property5, execute or do any assurance or thing requisite for
vesting the devise6, legacy, residue or share in the trustee or trustees so appointed7.
1 The minor must be entitled to an absolute vested interest: see the Distribution Act 1958 (Act 300) s 7. See also the
Trustee Act 1949 (Act 208) s 36 which provides that the age of 21 years is the cut-off age for vesting.
4 See the Trustee Act 1949 s 39(1)(a) where it limits the number of trustees to four.
5 See the Probate and Administration Act 1959 (Act 97) s 60.
Page 437
6 As to the vesting of certain movable trust property in new and continuing trustees see the Trustee Act 1949 s 44.
[330.584]
Discharge of personal representatives
On the appointment of trustees during a minority1, the personal representatives2 as such are discharged
from all further liability in respect of the devise, legacy, residue or share, which may be retained in its
existing condition or state of investment, or may be converted into money, and the money may be
invested in any authorised investment3.
1 See [330.583].
[330.585]
Maintenance out of income of legacy and power to accumulate surplus income
The trustees, who hold any property in trust for any minor1 for any interest whatsoever, whether vested
or contingent, subject to any prior interests or charges affecting that property, may at their sole
discretion, during the minority of any such person, pay to the minor's parent or guardian, if any, or
otherwise apply for or towards his maintenance, education or benefit2, the whole or such part, if any, of
the income of that property, as may, in all the circumstances, be reasonable, whether or not there is (1)
any further fund applicable to the same purpose; or (2) any person bound by law to provide for his
maintenance or education3.
In deciding whether the whole or any part of the income of the property is during a minority to be paid or
applied for the maintenance, education or benefit of the minor, the trustees must have regard to the age
of the minor and his requirements and generally to the circumstances of the case, and in particular to
what income, if any, is applicable for the same purposes; and where trustees have notice that the income
or more than one fund is applicable for those purposes, then so far as practicable, unless the entire
income of the funds is paid or applied as aforesaid or the court otherwise directs, a proportionate part
only of the income of each fund will be so paid or applied4.
1 As to the appointment of trustees during minority see [330.583].
2 See Re Gan Eng Seng [1905] 9 SSLR 72, where payments had been made to infant beneficiaries, to which an
administrator claimed to have been made out of the estate, it was held that there must be an inquiry whether any and what
advances or payments had been made to the beneficiaries. See also Re Cheong Soon Piang, Lau Poh Yoke v Cheong
Weng Moon (1954) 2 MC 214.
3 Trustee Act 1949 (Act 208) s 36(1)(a). See Re Yong Wai Man ex p Yong Khai Min [1994] 3 MLJ 514 where it was held
that a guardian holding the property of an infant is a trustee holding property under an implied trust for the infant.
4 Trustee Act 1949 s 36(1) proviso.

Page 438
[330.586]
Legacy to minor who is not the testator's child
If the minor is not the child of the testator or one to whom the testator stood in loco parentis, a legacy
given contingently upon his attaining his majority1 stands upon the same footing as an ordinary
contingent legacy2; it does not (save as otherwise provided by statute) carry the intermediate income
unless there is a direction in the will that it should be set apart.
Both executors3 and administrators4 who hold property belonging to a minor are trustees5 for the
purpose of exercising the statutory powers of trustees relating to the maintenance of the minor6.
2 As to contingent legacies see [330.589].
6 See the Trustee Act 1949 (Act 208) s 36(1), (2).

Page 439
Annuities/ (vi) Interest and Accretions
(vi) Interest and Accretions
[330.587]
General principles
The legacy, notwithstanding that it applies to a future or contingent legacy1 by the parent of, or a person
standing in loco parentis to, the legatee, if and for such period as, under the general law, carries interest
for the maintenance of the legatee, from the testator's death (if the income is sufficient and subject to any
rules of court to the contrary) at five ringgit per centum per annum2.
However, where an account of the debts of a deceased person is directed by any judgment, then, unless
the deceased's estate is insolvent or the court otherwise orders, interest is allowed:
(1) on any such debt as carries interest, at the rate it carries; and
(2) on any other debt, at such rate as the Chief Judge may from time to time direct from the
date of the judgment3.
Where an account of legacies is directed by any judgment, then subject to any directions contained in
the will in question and to any order made by the court, interest is allowed on each legacy at such rate as
the Chief Justice may from time to time direct beginning at the expiration of one year after the testator's
death4.
No action to recover arrears of interest in respect of a legacy, or damages in respect of such arrears can
be brought after the expiration of six years from the date when the interest became due5.
1 As to contingent legacies see [330.589].
2 Trustee Act 1949 (Act 208) s 36(3).
3 RC O 44 r 18(1).
4 RC O 44 r 19.
5 Limitation Act 1953 (Act 254) s 23 which also stipulates that the limitation of actions claiming personal estate of a
deceased person is 12 years. See Chokalingam Chettiar v Kasivisvanathan Chettiar [1935] MLJ 45, PC ; Re Yap Teck
Hee (decd), Yap Pong Sai v Tan See Tiong [1940] MLJ 122; Lam Wai Hwa v Toh Yee Sum [1983] 2 MLJ 302, PC .
[330.588]
Interest payable
An immediate general legacy1 carries interest only from the expiration of a year after the testator's
death2, unless it is directed by the will to be paid immediately after the testator's death.
Where the distribution of a legacy is specified by the testator and is contingent on the legatee surviving
the date of distribution, the legatee is only entitled to interest on his share of the legacy from the date of
Page 440
vesting of such share, but not to both interest and maintenance3, unless specifically directed by the
testator in his will.
2 Re Abdullah Saleh Shooker [1948] Supp MLJ 88. See also [330.587].
[330.589]
Contingent legacies
Where the will of a deceased implies that the intermediate income from the trust fund must be
accumulated by the trustees in a case of vested or contingent interest1, the trustees2 have no power to
apply the income of the trust fund to the maintenance of the minor3. Such accumulations cannot be
applied for the maintenance of the minor unless there is a contrary intention4 in the will5.
1 See Ong Seok Neo v Chee Hoon Bong [1892] 1 SSLR 53 where the testator directed the trustees to accumulate.
2 As to the appointment of trustees during minority see [330.583].
3 Re Ong Lai (decd), Ong Thian Ee v Tan Tian Tee [1948-1949] Supp MLJ 1.
5 Re Gan Eng Seng (decd) [1905] 9 SSLR 72.
[330.590]
Vested annuities
A vested annuity is income of property held by a personal representative1 in trust to pay the income to
the annuitant for the same period for which the annuity is payable2, save that accumulations made
during the minority of the annuitant must be held in trust for the annuitant or his personal representatives
absolutely3.
2 See Estate of Lee Choon Guan (decd); Tan Teck Neo v George Tan [1949] MLJ 299, PC .
3 Trustee Act 1949 (Act 208) s 36(4). See Lam Kin Sang v Cheang Kok Sang [1930] SSLR 249.
[330.591]
Accretions
A legacy may earn for itself income before distribution to the beneficiary of the legacy. If the term of the
will states that the beneficiary is only entitled to the named legacy and that any accretion from the legacy
is to be enjoyed by the residuary legatee or other beneficiary, then, the beneficiary of the legacy only
takes such legacy but not the accretion of the benefits1.
Page 441
However, in the absence of any provision in the will on the benefits accruing to a particular legacy after
the death of the deceased, it appears that the legatee in question is entitled to enjoy the benefits2. If it is
the intention of the testator that no residuary legatee's share should lapse, then the substitutional gift
should take effect3.
1 In Re Khoo Tiong Poh (decd) [1904] 8 SSLR 67 it was held that a gift over, which has the effect of divesting a previously
vested legacy, is one which will not be given effect to unless the language of the gift over is unambiguous and not open to
two constructions, and if capable of two constructions, that construction will be adopted which will support the prior gift,
and the other will be rejected and the gift over treated as of no effect.
2 Low Cheng Soon v Low Chin Piow [1932] MLJ 15.
3 Foo Yin Choo v Foo Siew Lan [1972] 1 MLJ 69, FC ; Woon Hong Chin v Chin Choo Lian [1930] SSLR 3.
Page 442
Annuities/ (vii) Abatement of Legacies and Annuities
(vii) Abatement of Legacies and Annuities
[330.592]
Abatement of general legacies
Legacies to females and males are all liable to abate alike. If an estate is insufficient to pay all the
legacies (general and specific1) in full, an executor2 has not the option, as in the case of debts of equal
degrees, to give one legatee a preference over another unless the testator's intention3 to give such
preference appears clearly from the will. If legacies are given under the apprehension that there is still a
surplus (after giving such legacies) such legacies will, if there is no surplus, be lost provided that it can
be inferred clearly from the will that such legacies would not have been given at all, and that they were
given only on condition that a surplus should be found to exist.
Legacies which are in their nature general are not entitled to any exemption from abatement on the
ground of their being applied to any particular object or purpose. If an executor voluntarily pays a legacy
in full and afterwards it is necessary for all the legacies to abate, he will be liable to the unpaid legatees
to make up the amount which he has paid in excess of what such legatees were justly entitled to and an
excuse that such payments were made under an erroneous impression that the testator had shown a
preference to the legatees so paid will not assist him, as he should not have acted upon it without the
previous sanction of the court whose direction in such cases ought always to be sought and would
readily be afforded.
Legatees who have been paid in full without any claim to preference are, in the event of the executor's
insolvency, liable to be called upon by the unsatisfied legatees to refund the amount which he has
received in excess of what he was justly entitled to, if a fair distribution had been made out of the actual
fund. Interest could not be allowed on such excess if such paid legatees had no further property in the
estate4.
1 As to general legacies see [330.565]; as to specific legacies see [330.564].
3 See Re Sevatha Vappoo Maricar (decd) [1940] MLJ 65 where the court had to determine the intention of the testator.
4 Tan Boon Soo v Choa En Seng SLR Leic 406.
[330.593]
Abatement of annuities
Where annuities1 are given by will2 and abatement is necessary3, the annuities must, in the absence of a
contrary direction by the testator, abate rateably, so as to enable the specific legacies to take effect4.
1 As to the payment of annuities see [330.571].

Page 443
3 See [330.592].
4 Re Noormohamed Virjibah Velmohamed (decd), Sakker Khanu Noormohamed Merchant v Malek Sultan Calcuttawala
[1958] MLJ 217.
[330.594]
Conflicting interest
Complications occur where a fund is directed to be appropriated1 to answer an annuity2 and there is a
gift over of the appropriated fund after the annuitant's death3. In such a case, where the trusts declared
by a will on the face of them do not exhaust the whole of the property, there is a trust as to the balance in
favour of the next-of-kin4.
2 As to annuities see [330.571].
3 Estate of Lee Choon Guan (decd); Tan Teck Neo v George Tan [1949] MLJ 299, PC , where it was held that the
annuities as bequeathed continue to be payable during the lives of the respective annuitants and the annuities do not
cease at the period of final distribution of the residuary fund.
4 Lam Kin Sang v Cheang Kok Sang [1929] SSLR 62; Re Mancherjee Pallonjee (decd) [1939] MLJ 7.
Page 444
Annuities/ (viii) Refunding
(viii) Refunding
[330.595]
Principle of refunding
The principle that all persons who obtain possession of trust funds with a knowledge that their title is
derived from a breach of trust will be compelled to restore such funds1.
1 Stubbs v Loh Hoh Seng (1888) 4 Ky 409.
[330.596]
Resulting trust on incomplete disposal of trust property
Where the trusts declared by a will on the face of time do not exhaust the whole of the property, there is
a trust as to the balance in favour of the next-of-kin1, or if the gift is invalid as tending to a perpetuity,
then the residuary legatee is entitled to such gift2. The words of a trust must be clear and unequivocal3
or the intention on the part of the deceased must be clear and precise for a valid trust to be duly
constituted by the deceased during his lifetime4. A resulting trust arises where the trusts comprised in an
indenture have become impossible of performance5, or where the court finds as a fact that a trust
exists6.
1 See [330.594] and Lam Kin Sang v Cheang Kok Sang [1929] SSLR 62.
2 Low Cheng Soon v Low Chin Piow [1932] MLJ 15, where it was held that the direction to apply a certain amount of
money towards the building of a house in China could be disregarded as the residuary legatees were absolutely entitled to
the sum and could claim the gift without applying it to the purpose indicated.
3 Quah Ooi Keat v Yew Phaik Hoon [1966] 2 MLJ 208 at 217, FC, per Ong Hock Thye Ag CJ .
4 Chow Yee Wah v Choo Ah Pat [1978] 2 MLJ 41, PC .
5 Re Lim Leng Cheak (decd) [1969] 2 MLJ 228, FC .
6 Yew Phaik Hoon v Quah Ooi Keat [1969] MLJ 32, PC .
[330.597]
Refunding between executor and legatee
Executors1 who have taken moneys in excess of the testamentary remuneration2 will have to repay such
excess to the estate3 and executors who have fully administered the estate of the testator, have to pay
the amount due to infant beneficiaries4.
Page 445
An executor cannot claim back or reopen a case where a minor legatee accepts, after coming of age, a
division of the property of the testator made by independent arbitrators and sells at a profit part of the
property allotted to him5.
If an executor voluntarily pays a legacy in full, and afterwards it is necessary for all the legacies to
abate6, he will be liable to the unpaid legatees to make up the amount which he has so paid in excess7.
1 An executor who has paid a legacy voluntarily cannot call upon the legatee to refund: Orr v Kaines (1750) 2 Ves Sen
194. However, if the payment is made under the compulsion of an action, and the assets are afterwards found to be
deficient, then the legatee can be compelled to refund: Newman v Barton (1690) 2 Vern 205; Noel v Robinson (1682) 1
Vern 90. If he parts with knowledge of the existence of a debt, then he cannot call upon the legatee to refund: Jervis v
Wolferstan (1874) LR 18 Eq 18. However, if he parts without knowledge of the existence of the debt, then he can call upon
the legatee to refund: see Whittaker v Kershaw (1890) 45 Ch D 320, CA (Eng) . As to executors see [330.243], [330.244].
3 Subbiah Sundaravalli Achi v Karuppiah Chettiar [1968] 2 MLJ 120.
4 Koh Swee Guat v Koh Kim Han (1930) 1 MC 74.
5 Chuah Hooi Neoh v Kau Sim Bee [1915] AIR 45, PC .
6 As to abatement see [330.592] and following.
7 Tan Boon Soo v Choa En Seng SLR Leic 406.
[330.598]
Right to equalise out of future payments
An executor1/trustee2 who has overpaid a beneficiary is entitled in the future administration of the trust to
equalise the payments at the expense of the overpaid beneficiary by deductions from future income due
to such beneficiary3.
3 The Chartered Bank (Malaya) Trustees Ltd Singapore v Mckern (1958) 3 MC 220.
[330.599]
Refunding on intestacy
Where an administrator1 has advanced moneys to the beneficiaries for their maintenance, the court will
not allow distribution2 of the property of the estate to the beneficiaries unless the administrator has filed
accounts of the administration of the estate to the court as to the advances made to the beneficiaries3.
1 See [330.245].
2 In Tan Jin Pek v Khoo Swee Swat (1957) 3 MC 122, it was held that a court will not order distribution of trust property to
a beneficiary indefeasibly entitled to his share if other beneficiaries are likely to suffer loss by that distribution.
3 Re Cheong Soon Piang (1954) 2 MC 214.

Page 446
[330.600]
Effect of order protecting representative
An assent1, transfer or conveyance by a personal representative2 to a person other than a purchaser3

does not prejudice the rights of any person to follow the property4 to which the assent, transfer or
conveyance relates, or any property representing the same, into the hands of the person in whom it is
vested by the assent, transfer of conveyance, nor of any other person (not being a purchaser) who may
have received the same or in whom it may be vested5.
Notwithstanding any such assent, transfer or conveyance, the court6 may, on the application of any
creditor7 or other person interested, grant such order requisite for the purpose of giving effect to the
rights of persons interested8; declare that the person, not being a purchaser, in whom the property is
vested is a trustee for those purposes9; give such directions required for giving effect to the order10; or
make any vesting order or appoint a person to convey in accordance with the provisions of the Trustee
Act 194911.
7 See [330.419].
8 Probate and Administration Act 1959 s 73(2)(a).
10 Probate and Administration Act 1959 s 73(2)(c).
11 Ie the Trustee Act 1949 (Act 208): Probate and Administration Act 1959 s 73(2)(d); see [330.510].
Page 447
Administration and Succession/(2) Executors and Administrators/(5) Distribution of Assets/ B. Order of
Application of Assets on Distribution
B. ORDER OF APPLICATION OF ASSETS ON DISTRIBUTION
[330.601]
First fund for payment
Subject to any contrary provisions in the will1, the first fund for the payment of pecuniary legacies2, is any
property of the deceased undisposed of by will3. Specific legacies4 take priority over general legacies5
and are liable to abatement6 only if the assets are insufficient for the payment of debts.
1 See [330.523].
2 See [330.511], [330.524] and [330.527].
3 See the Probate and Administration Act 1959 (Act 97) s 69, Sch 1 Pt II.
6 See [330.592].
[330.602]
General rules
In the absence of a sufficient indication of a contrary intention1 in a will, pecuniary legacies2 are payable
out of the movable estate not specifically bequeathed3 and where the testator has indicated his intention
that the residuary legatee will receive the gift in his character of residuary legatee which leads to the
inference that the gift is subject to the pecuniary legacy, the pecuniary legacy is charged on immovable
property4.
Where the testator, on the true construction of his will, intends to dispose of all his property, his real and
immovable estate passes by will and his annuitant is entitled to such annuity5 as bequeathed during the
annuitant's lifetime and is entitled to the whole of the income of the testator's immovable and movable
properties subject to the payments and allowances as mentioned in the will6.
2 See [330.527].
3 See [330.601]. See also Re Lee Choon Guan (decd) [1934] MLJ 136.
4 Re Sevatha Vappoo Maricar (decd) [1940] MLJ 65.
5 Re Al Kaf Settlement [1957] MLJ 119.
6 Re Vermont (decd) [1934] MLJ 159.

Page 448
[330.603]
Mixed fund
Where the testator's immovable and movable property has been so blended together as to form a mixed
fund for the payment of legacies1, the legacies must be borne by the movable and immovable estate
rateably2.
1 As to the classification of legacies see [330.563] and following.
2 See [330.522].
[330.604]
Power to postpone distribution
Subject to statutory requirements1, a personal representative2 is not bound to distribute the estate of the
deceased before the expiration of one year from the death of the deceased3.
1 The Probate and Administration Act 1959 (Act 97) s 69, Sch 1 Pt II provides for the order of application of assets where
the estate is solvent; see [330.522] and following.
3 Probate and Administration Act 1959 s 77; see [330.567]. This provision merely states that the personal representative
does not have to pay a legacy immediately and gives the personal representative time to carry out his duties. It does not
require the personal representative to wait for 12 months before paying a legacy.
Page 449
Administration and Succession/(2) Executors and Administrators/(5) Distribution of Assets/ C. The Residuary
Estate under a Will
C. THE RESIDUARY ESTATE UNDER A WILL
[330.605]
What a residuary gift comprises
A residuary gift is a gift of what remains after meeting all liabilities of the estate and all other gifts as
specified under the will of the deceased1. It so includes property over which the testator has a general
power of appointment. In order to exclude from such a gift a particular property belonging to the testator
and not otherwise disposed of by will it is necessary to find a plain and unequivocal intention2 on his part
not to include that property in the residuary gift.
1 See Re Chin Sem Lin's Settlement, Yong Tet Foong v Chin Thin Lee [1971] 2 MLJ 152.
2 See Re Vermont (decd) [1934] MLJ 159.
[330.606]
Lapsed or void devises or bequests
Unless a contrary intention1 appears by the will2, such property3 as is comprised or intended to be
comprised in any devise or bequest in such will contained, which fails or is void4 by reason of the death of
the devisee or legatee5 in the lifetime of the testator or by reason of such devise or bequest being contrary
to law or otherwise incapable of taking effect, will be included in the residuary devise or bequest6
respectively, if any, contained in the will7.
3 See [330.001] note 2.
4 Re Tan Lip Buoy's Will [1996] 2 SLR 663 where it was held that the residue bequest to an ancestral fund was not
charitable and was void as it infringed the rule against perpetuities, and also the scope of the bequest being unclear was
void for uncertainty. Such bequest should be distributed according to the law of intestacy (see [330.645] and following).
5 In Foo Yin Choo v Foo Siew Lan [1972] 1 MLJ 69, FC , the Federal Court held that by the testator's intention, no residuary
legatee's share should lapse if it was possible for the substitutional gift to take effect.
6 Oh Wee Kee v Boon Bong Neoh (1882) 1 Ky 544, where the houses and the proceeds of the houses did not fall into the
residuary clause of the will of the testator.
7 Wills Act 1959 (Act 346) s 19. See Chia Hock Seng v Thor Keng Hong [1970] 2 MLJ 12 which determined the division of
the residuary estate and the construction of 'lawful male issue' in the will.
[330.607]
Page 450
Residuary legatee's interest in an undivided residue of estate
A residuary legatee's right in an undivided residue comprising of a share in the proceeds of sale of residue
of immovable property which though held on trust for sale has not yet been sold, is a chose in action1. He
has no interest in any property of the deceased until the residue has been ascertained2; his right is only to
have the estate properly administered by the executors.
1 Re Abdul Salam (decd), Abdul Razak v Kasi Mohamed Shirazil Anwar [1938] MLJ 83.
2 Punca Klasik Sdn Bhd v Foh Chong & Sons Sdn Bhd [1998] 1 CLJ 601.
Page 451
Administration and Succession/(2) Executors and Administrators/(5) Distribution of Assets/ D. The Residuary
Estate on Intestacy
D. THE RESIDUARY ESTATE ON INTESTACY
[330.608]
Trusts on intestacy
In the case of an intestate person1, his personal representatives2 so appointed as sanctioned by the
court3 for the purpose to collect and preserve the property of the deceased, and to give discharge of debts
due to his estate, will have the power to dispose of all assets of the estate4 of a wasting or perishable
nature and invest the proceeds of sale5.
Unless the court directs, no sale, transfer, conveyance or assent6 in respect of immovable property is
made without the concurrence of all the personal representatives of the deceased; and where there are
several personal representatives, the powers of all may, in the absence of any direction to the contrary in
the grant of administration7, be exercised by any one of them8. An administrator9 may not, without the
previous permission of the court mortgage, charge or transfer by sale, gift, exchange or otherwise any
immovable property10 situate in any state and for the time being vested in him or lease any such property
for a term exceeding five years11.
An administrator is allowed in law reasonable testamentary and other expenses incurred by them, and
also proper funeral expenses and all reasonable expenses of subsequent religious ceremonies suitable to
the station in life of the deceased12.
5 Probate and Administration Act 1959 (Act 97) s 23; see HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383.
8 Probate and Administration Act 1959 s 60(2); see [330.610]. See also Dr Ang Eng Lip v June Daniel Amaranickrama
[1997] 5 CLJ 148.
11 Probate and Administration Act 1959 s 60(4); see Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non
with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90; Re Lua Kin Suai [1998] 7 MLJ
258.
12 Probate and Administration Act 1959 s 44(1). As to testamentary and administration expenses see [330.533] and
following.
[330.609]
Page 452
Investment
During the minority of any beneficiary or subsistence of any life interest, and pending the distribution of the
whole or any part of the deceased's estate, the personal representatives1 may invest the residue of the
money, or so much of it as may not have been distributed, in any investment for the time being authorised
by statutory provisions2 for the investment of trust money, with power, at their discretion, to change those
investments for others of a like nature3.
2 See the Trustee Act 1949 (Act 208) ss 4-11 which set out the power of trustees to invest. As to the power of personal
representatives to appoint trustees of minor's property see the Probate and Administration Act 1959 (Act 97) s 75 and
[330.583].
3 See the Trustee Act 1949 s 6 which sets out the duty of trustees in choosing investments.
[330.610]
Distribution of residuary estate
Subject to statutory law1 regulating distribution in Malaysia, the personal representatives2 must hold:
(1) the immovable property3 of a person intestate4 upon trust, subject to the statutory
requirement5 to sell the same; and
(2) the movable property upon trust to call in, sell and convert into money such part of that
property as may not consist of money,
with power to postpone the sale and conversion for such period as the personal representatives, without
being liable to account, may think proper, and so that any reversionary interest be not sold until it falls into
possession, unless the personal representatives see special reason for sale6.
1 Ie the Distribution Act 1958 (Act 300) s 6 (amended by the Distribution (Amendment) Act 1997 (Act A1004) s 3) as respect
succession to intestate estates and the Distribution Act 1958 s 7 in respect of trusts in favour of issue and other classes of
relatives of intestate.
5 Ie the Probate and Administration Act 1959 (Act 97) s 60; see Chee Hock Lai v Tan Swee Thai [1990] 3 MLJ 477; Re
Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will annexed, of the Estate of K AL RM Karuppan
Chettiar, decd) [1998] 2 MLJ 90.
[330.611]
Income pending distribution
The money held by the personal representatives1 is applied towards the funeral expenses2, testamentary
and due administration expenses3, debts and other liabilities as are properly payable4, after which the
residue of the said money and any investments5 for the time being representing the same, is treated and
applied as income and for that purpose any necessary apportionment may be made between the tenant
for life and remainderman6.
Page 453
The court will not infer the existence of any period of limitation of the administration by the executor7, so
long as the assets still remain in the estate of the testator8.
2 See [330.500].
3 As to testamentary and administration expenses see [330.533] and following.
4 See the Probate and Administration Act 1959 (Act 97) s 68(2). As to the duty to pay debts see [330.509].
5 See [330.609].
8 Ketua Pengarah Hasil Dalam Negeri v Tan Sri Kishu T Jethanand [1998] 2 CLJ Supp 264, CA .
[330.612]
Children's advancements not to be taken into account
Where a distributive share of the property of a person dying intestate is claimed by a child or any
descendant of a child of such person, no money or other property which the intestate may during his life
have paid, given or settled to or for the advancement of the child by whom or by whose descendant the
claim is made is taken into account in estimating such distributive share1.
1 Distribution Act 1958 (Act 300) s 9. See Re Chia Eng Say (decd) [1951] MLJ 119, where the allotment of the shares came
within the definition of provision for the sons and the values of the allotments were sufficiently large to raise the presumption
that they were in nature of advances.
[330.613]
Entitlement to residue on intestacy
When any person dies or has died, having by his will appointed any person to be his executor1, the
executor is deemed to be a trustee for the person, if any, who would be entitled to the estate in case the
person died intestate in respect of any residue not expressly disposed of, unless it appears by the will that
the person so appointed executor was intended to take the residue beneficially2.
Where a trust declared in a will fails3 on the ground that it is impracticable of performance4 or there is an
uncertainty with reference to the objects5, the residuary estate will devolve as upon an intestacy and there
should be an inquiry as to who should benefit under that intestacy6.
2 Civil Law Act 1956 (Act 67) s 21. See Rachael Mei Ling Ong v Dato' Bruno Henry Almeida [1998] 3 CLJ 71, [1998] 1 AMR
600. See also Re Lee Theam Neoh (decd) [1956] MLJ 22.
3 Re Chin Sem Lin's Settlement, Yong Tet Foong v Chin Thin Lee [1971] 2 MLJ 152.
4 In Re Valibhoy Charitable Trust [1975] 1 MLJ 187; [1976] 1 MLJ 207, CA (Sing) , the Court of Appeal of Singapore
reaffirmed the trial judge's decision that although it became impracticable to carry out the intention of the testator as set out
in the will, because of the general charitable intention as evinced by the testator, the trusts had not failed but should be
carried into effect cy-pres by a scheme which conformed to the directions as closely as possible.
Page 454
5 Re Chionh Ke Hu (decd) [1964] MLJ 270.
6 Re Lee Moey Chye (decd) [1966] 1 MLJ 131; Re Tan Lip Buoy's Will [1996] 2 SLR 663.
Page 455
Administration and Succession/(2) Executors and Administrators/(5) Distribution of Assets/ E. Law
Regulating Distribution
E. LAW REGULATING DISTRIBUTION
[330.614]
Movable property
The distribution of the movable property1 of a person deceased is regulated by the law of the country in
which he was domiciled at the time of his death2.
1 Re Abdul Salam (decd), Abdul Razak v Kasi Mohamed Shirazil Anwar [1938] MLJ 83, where a share in the proceeds of
sale of residuary estate is movable property even though such residue consists principally of immovable property which,
though held on trust for sale, has not yet been sold.
2 Distribution Act 1958 (Act 300) s 4(1). See Lee Joo Neo v Lee Eng Swee (1887) 4 Ky 325; Yap Tham Thai v Low Hup Neo
[1919] 1 FMSLR 383; Ooi Siew Hong v Ooi Kim Lan [1923] 3 FMSLR 244; Yap Tow On v Woon Ngee Yew [1940] MLJ 96;
Lily Iskandar v Bonardy Leo [1986] 1 MLJ 368, CA (Sing) , where the question of probate in respect of movables was
adjourned until after the determination in Indonesia of the applications of the respondents; HSBC (M) Trustee Bhd v Kong
Kim Hoh [1999] 3 MLJ 383 where the distribution of the estate of a deceased who died intestate is, pursuant to the
Distribution (Amendment) Act 1997 (Act A1004) s 4, deemed to have commenced on the date on which steps have been
taken by the administrator who has successfully extracted the grant of the letters of administration to transfer or distribute
part of the assets of the estate, whereby only assets in relation to which steps have been taken to transfer or distribute will
proceed as if the Distribution (Amendment) Act 1997 had not been passed whereas the administration of the other assets in
relation to which no steps have been taken to transfer or distribute will proceed in accordance with the provisions of the
Distribution (Amendment) Act 1997.
[330.615]
Immovable property
The distribution of the immovable property1 of a person deceased intestate is regulated by the Distribution
Act 19582 wherever he may have been domiciled at the time of his death3.
1 Where the estate of the deceased includes immovable property and does not exceed RM600 in value (not including any
property which the deceased held as trustee), the distribution of the estate will be governed by the Small Estates
(Distribution) Act 1955 (Act 98). As to small estates see [330.756] and following.
2 Ie the Distribution Act 1958 (Act 300).
3 Distribution Act 1958 s 4(2). See Hsu Yik Chai v Hsu Yaw Tang [1982] 2 MLJ 227, FC ; HSBC (M) Trustee Bhd v Kong
Kim Hoh [1999] 3 MLJ 383.
[330.616]
Transfer of assets to personal representative in country of domicile of deceased for distribution
Where (1) a person not having his domicile in Malaysia has died leaving assets both in Malaysia and in
the country in which he had his domicile at the time of his death; and (2) there has been a grant of
Page 456
representation1 in Malaysia with respect to the assets there and a grant of representation in the country of
domicile with respect to assets in that country, the personal representative2 in Malaysia, after having given
due notice3 and after having discharged at the expiration of the time stated in the notice all lawful claims of
which he has had notice, may, instead of himself distributing any surplus or residue of the deceased's
property4 to persons residing out of Malaysia who are entitled to that property, transfer, with the consent of
the personal representative in the country of domicile, the surplus or residue to him for distribution to those
persons so entitled5.
3 See the Trustee Act 1949 (Act 208) s 32 in relation to the protection accorded to trustees or personal representatives in
respect of claims against the estate of which they have no notice, after the expiration of time stated in a notice advertised by
the trustees or representatives. See also [330.507], [330.508].
5 Probate and Administration Act 1959 (Act 97) s 63; see also [330.503].
Page 457
Administration and Succession/(2) Executors and Administrators/(5) Distribution of Assets/ F. Family
Provision
F. FAMILY PROVISION
[330.617]
Persons for whom provision may be made
In the event that a will does not provide adequately for the dependants of a deceased, the law1 provides
that the person so dependent may apply to the court for reasonable provision for maintenance to be made
to him. Applications may be made in intestacy cases as well2, but where the surviving spouse has been
provided for with not less than two-thirds of the income of the net estate3 and where the only other
dependants are the children, then no application can be made4.
Applications for such orders of reasonable provision for maintenance may be made by:
(1) the spouse of the deceased5;

(2) the daughter who has not been married or who is, by reason of some mental or physical
disability, incapable of maintaining herself6;
(3) an infant son7; and
(4) a son who is, by reason of some mental or physical disability, incapable of maintaining
himself8.
Such order is by way of periodical payment9 and the order will terminate not later than:
(a) in the case of a wife or husband, her or his remarriage;

(b) in the case of a daughter who has not been married or who is under disability, her marriage
or the cesser of her disability, whichever is the later;
(c) in the case of an infant son, his attaining the age of 21 years;
(d) in case of a son under disability, the cesser of his disability,
or, in any case, his or her earlier death10.
1 Ie the Inheritance (Family Provision) Act 1971 (Act 39) which came into force on 1 January 1973. This Act is applicable
throughout Malaysia but does not apply to the estate of deceased Muslims or natives of any of the States in East Malaysia: s
1(2). However, it has been extended to Sarawak with effect from 1 December 1986 by the Extension to the State of Sarawak
Order 1986 (PU (A) 446/1986).
2 See the Inheritance (Family Provision) Act 1971 s 3(1). As to intestate succession see [330.645] and following.
3 See [330.621].
4 Inheritance (Family Provision) Act 1971 s 3(1) proviso. The onus of proof is upon the applicant to show that the operation
of the deceased's will or intestacy has not given him reasonable provision.
5 Inheritance (Family Provision) Act 1971 s 3(1)(a). By virtue of the Inheritance (Family Provision) Act 1971 s 3(8), the court
is not bound to assume that the Distribution Act 1958 (Act 300) makes reasonable provision for the maintenance of the
dependants. Based on the relevant statutory provision of the Inheritance (Family Provision) Act 1971 s 3, the court may
order that reasonable provision for maintenance be made by way of periodical payments: Re Tan Hui Guan, decd (Phang
Siew Fa v Aw Kim Siok) [2006] 3 MLJ 663.
6 Inheritance (Family Provision) Act 1971 s 3(1)(b). 'Daughter' and 'son' respectively, include a female or male child adopted
by the deceased under the provisions of any written law relating to the adoption of children for the time being in force and
also the daughter or son of the deceased en ventre sa mere at the date of the deceased: s 2. See Re Tan Hui Guan, decd
(Phang Siew Fa v Aw Kim Siok) [2006] 3 MLJ 663 (maintenance of a child cannot exclude the education needs of the child;
'maintenance' does not mean mere 'subsistence').
Page 458
7 Inheritance (Family Provision) Act 1971 s 3(1)(c).
8 Inheritance (Family Provision) Act 1971 s 3(1)(d).
9 Where the value of a deceased's net estate does not exceed RM40,000, the court has power to make an order providing
for maintenance, in whole or in part, by way of a lump sum payment: Inheritance (Family Provision) Act 1971 s 3(4).
10 Inheritance (Family Provision) Act 1971 s 3(2).
[330.618]
Mode of application
In the High Court, proceedings under the Inheritance (Family Provision) Act 19711 are begun by
originating summons2, and the plaintiff must lodge with the court a supporting affidavit, exhibiting an
official copy of the grant of representation to the deceased's estate and of every testamentary document
admitted to proof, and notice of the proceedings must be served on every party to the proceedings3.
1 Ie the Inheritance (Family Provision) Act 1971 (Act 39). As to persons for whom provision may be made see [330.617].
2 RC O 86 r 3. As to originating summons see CIVIL PROCEDURE (2014 Reissue) [190.2-022] and following.
3 RC O 86 r 2(1).
[330.619]
Facts material in the determination of the amount for maintenance by the court
The amount of annual income1 which may be made applicable for the maintenance of deceased
dependants2 by an order or orders to be in force at any one time must in no case be such as to render
them entitled under the deceased's will3 or under the law relating to intestacy4, or the combination of his
will and that law as varied by the order or orders to more than the following fraction of the annual income
of his net estate, that is to say:
(1) if the deceased leaves both a wife or husband and one or more other dependants,
two-thirds5; or
(2) if the deceased does not leave a wife or husband, or leaves a wife or husband and no other
dependant, one-half6.
Where the value of a deceased's net estate does not exceed a specified amount7, the High Court has
power to make an order providing for maintenance, in whole or in part, by way of a lump sum payment8.
In determining whether, and in what way, and as from what date, provision for maintenance ought to be
made by an order, the High Court must have regard to:
(a) the nature of the property representing the deceased's net estate and will not order any such
provision to be made as would necessitate a realisation that would be improvident having
regard to the interests of the deceased's dependants and of the person who, apart from the
order, would be entitled to that property9;
(b) any past, present or future capital or income from any source of the dependant of the
deceased to whom the application relates, to the conduct of that dependant in relation to the
deceased and otherwise, and to any other matter or thing which in the circumstances of the
Page 459
case the court may consider relevant or material in relation to that dependant, to the persons
interested in the estate of the deceased, or otherwise10; and
(c) the deceased's reasons, so far as ascertainable, for making the dispositions made by his will
(if any), or for not making any provision or any further provision as the case may be, for a
dependant, and the court may accept such evidence of those reasons as it considers
sufficient, including any statement in writing signed by the deceased and dated, so, however,
that in estimating the weight, if any, to be attached to any such statement the court will have
regard to all the circumstances from which any inference can reasonably be drawn as to the
accuracy or otherwise of the statement11.
1 'Annual income' means in relation to the net estate (see [330.621]) of a deceased person, the income that the net estate
might be expected at the date of the order, when realised, to yield in a year: Inheritance (Family Provision) Act 1971 (Act 39)
s 2.
2 As to the persons for whom provision may be made see [330.617]. As to the mode of application see [330.618].
3 For the purposes of the Inheritance (Family Provision) Act 1971 'will' includes codicil: s 2.
5 Inheritance (Family Provision) Act 1971 s 3(3)(a).
6 Inheritance (Family Provision) Act 1971 s 3(3)(b).
7 Ie RM40,000: Inheritance (Family Provision) Act 1971 s 3(4).
11 Inheritance (Family Provision) Act 1971 s 3(7). See also [330.625].
[330.620]
Time for application
The person1 making the application2 for maintenance has to prove that he was a dependant and that the
disposition of the deceased's estate effected by his will3 or the law relating to intestacy4, or the
combination of his will and that law is not such as to make reasonable provision for maintenance5. Such
application has to be made by way of originating summons within six months from the date on which
representation in regard to the deceased's estate is first taken out6. However, the High Court will allow an
extension of time if the limitation to the said period of six months would operate unfairly, in consequence
of:
(1) the discovery of a will involving a substantial change in the disposition of the deceased's
estate (whether or not involving a further grant of representation);
(2) a question whether a person had an interest in the estate, or as to the nature of an interest in
the estate, not having been determined at the time when representation was first taken out;
or
(3) some other circumstances affecting the administration or distribution of the estate7.
The personal representatives8 of the deceased will not be liable for having distributed any part of the
estate of the deceased after the expiration of the said period of six months9 on the ground they ought to
have taken into account the possibility that the court might exercise its power10 to extend that period11.
Page 460
1 As to the persons for whom provision may be made see [330.617].
2 As to the mode of application see [330.618].
3 See [330.619] note 3.
5 Inheritance (Family Provision) Act 1971 (Act 39) s 3(1).
6 Inheritance (Family Provision) Act 1971 s 4(1). As to an originating summons see CIVIL PROCEDURE (2014 Reissue)
[190.2-022] and following.
7 Inheritance (Family Provision) Act 1971 s 4(2). As to the administration of assets see [330.498] and following; and as to
the distribution of assets see [330.563] and following.
9 See SRM Raman Chettiar v Soh Bek Neo [1952] MLJ 92, where the court examined the issue of 'within a certain time'.
10 RC O 86 r 2(1) provides that the court may at any stage of proceedings under the Inheritance (Family Provision) Act
1971 by order direct that any person be added as a party to the proceedings or that notice of the proceedings be served on
any person without prejudice to its power in relation to causes of action, counterclaims and parties (see RC O 15).
11 Inheritance (Family Provision) Act 1971 s 4(3). This provision, however, is without prejudice to any power to recover any
part of the estate so distributed arising by virtue of the making of an order: s 4(3).
[330.621]
Net estate
In relation to a deceased person, his net estate is all the property of which he had power to dispose by his
will1 (otherwise than by virtue of a special power of appointment) less the amount of his funeral,
testamentary and administration expenses, debts and liabilities and estate duties payable out of his estate
on his death2.
1 See [330.619] note 3.
2 Inheritance (Family Provision) Act 1971 (Act 39) s 2.
[330.622]
Effect and form of the order
Where an order is made for reasonable provision for maintenance1, for all purposes, including the
purposes of the laws relating to death duties2, the will3 or the law relating to intestacy4 as the case may
be, will have effect and will be deemed to have had effect, as from the deceased's death, subject to such
variation as may be specified in the order for the purposes of giving effect to the provision for maintenance
thereby made5.
An office copy of every order made must be sent to the High Court Registry for entry and filing, and a
memorandum of the order must be indorsed on, or permanently annexed to, the probate6 or letters of
administration7 under which the estate is being administered8.
1 See the Inheritance (Family Provision) Act 1971 (Act 39) s 3. See also [330.617] and following.
Page 461
2 'Death duties' means estate duty and every other duty leviable or payable on death: Inheritance (Family Provision) Act
1971 s 2.
3 See [330.619] note 3.
5 Inheritance (Family Provision) Act 1971 s 5(1). The court may give such consequential directions as it thinks fit for the
purpose of giving effect to an order: see s 5(2) and [330.623].
[330.623]
Consequential provision in order
The court may give such consequential directions as it thinks fit for the purpose of giving effect to an order
for reasonable provision for maintenance1, but no larger part of the net estate2 may be set aside or
appropriated3 to answer by the income thereof the provision for maintenance thereby made than such a
part as, at the date of the order, is sufficient to produce by the income thereof the amount of the said
provision4.
1 See the Inheritance (Family Provision) Act 1971 (Act 39) s 3. See also [330.617] and following.
2 See [330.621].
[330.624]
Exercise of jurisdiction
In exercising its jurisdiction to grant reasonable provision for maintenance1, the court is required to follow
the statutory directions as to the matters to be considered2. If the court on the application by or on behalf
of any dependant of the deceased3 is of opinion that the disposition of the deceased's estate effected by
his will4, or the law relating to intestacy5, or the combination of his will and that law, is not such as to make
reasonable provision for the maintenance of that dependant, the court may order that such reasonable
provision as the court thinks fit is, subject to such conditions or restrictions, if any as the court may
impose, made out of the deceased's net estate6 for the maintenance of that dependant7.
1 Ie under the Inheritance (Family Provision) Act 1971 (Act 39); see [330.617] and following.
2 See [330.625].
4 See [330.619] note 3.
6 See [330.621].
Page 462
[330.625]
Matters which the court is to have regard
Where an application is made for an order for reasonable provision for maintenance1, the court has to
determine whether the disposition of the deceased's estate effected by his will2 or the law relating to
intestacy3, or the combination of his will and that law, is such as to make reasonable financial provision for
the applicant4; and if the court considers that reasonable financial provision has not been made, it may
order such reasonable provision as it thinks fit5. In determining these matters the court must have regard
to:
(1) the nature of the property representing the deceased's net estate6;
(2) any past, present or future capital or income from any source of the applicant, to the conduct
of that applicant in relation to the deceased and otherwise, and to any other matter or thing
which in the circumstances of the case the court may consider relevant or material in relation
to that applicant, to the persons interested in the estate of the deceased, or otherwise7;
(3) the deceased's reasons, so far as ascertainable, for making the dispositions made by his will
(if any), or for not making any provision or any further provision as the case may be, for the
applicant8; and
(4) whether the applicant has any mental or physical disability or is incapable of maintaining
himself9.
1 Ie under the Inheritance (Family Provision) Act 1971 (Act 39) s 3; see [330.617] and following.
2 See [330.619] note 3.
5 Inheritance (Family Provision) Act 1971 s 3(1). See also [330.622], [330.623].
6 Inheritance (Family Provision) Act 1971 s 3(5). As to what is the deceased's net estate see [330.621].
9 Inheritance (Family Provision) Act 1971 s 3(1)(b), (c).
[330.626]
Variation of orders
On an application1 made at a date after expiration of six months from the date on which representation in
regard to a deceased's estate is first taken out2, or, as the case may be, of that period extended by the
court3, the court may make such order, but only as respects property the income of which is at that date
applicable for the maintenance of a dependant of the deceased4, that is to say:
(1) an order for varying a previous order on the ground that any material fact was not disclosed
to the court when the order was made or that any substantial change has taken place in the
Page 463
circumstances of the dependant or of a person beneficially interested in the property under

the will5, or as the case may be, under the law relating to intestacy6; or
(2) an order for making provision for the maintenance of another dependant of the deceased7.
1 Ie an application for reasonable provision for maintenance under the Inheritance (Family Provision) Act 1971 (Act 39); see
2 See the Inheritance (Family Provision) Act 1971 s 4(1) and [330.620].
3 See the Inheritance (Family Provision) Act 1971 s 4(2) and [330.620].
5 See [330.619] note 3.
6 Inheritance (Family Provision) Act 1971 s 6(1)(a). As to intestate succession see [330.645] and following.
7 Inheritance (Family Provision) Act 1971 s 6(1)(b).

Page 464
Administration and Succession/(2) Executors and Administrators/(5) Distribution of Assets/ G. Assents/ (i)
Movable Estate
G. ASSENTS
(i) Movable Estate
[330.627]
Necessity for assent
It is desirable that a personal representative1 who is a trustee or devisee should, after the administration
has been completed2, execute an assent in writing in his own favour, in order to show that his duties as
personal representative3 have ceased, and he now holds the property as trustee or devisee.
2 In Punca Klasik Sdn Bhd v Foh Chong & Sons Sdn Bhd [1998] 1 CLJ 601, it was held that a beneficiary has no interest
in property in any specific investment forming part of the estate or in the income from any such investment when the
administration of the estate is incomplete.
[330.628]
Assent by implication
An assent to the vesting of movable estate or of an equitable interest in immovable estate1 may be
express or implied2; it need not be in writing nor need it be given in any particular form, but it is a
requisite before transfer can be effected3.
1 See [330.630].
2 As to the different considerations which apply to the statutory assent see [330.630].
3 Shatomah v Kader Meydin (1870) SLR Leic 275.

Page 465
Administration and Succession/(2) Executors and Administrators/(5) Distribution of Assets/ G. Assents/ (ii)
Immovable Estate
(ii) Immovable Estate
[330.629]
Power to assent
A personal representative1 may assent to the vesting in any person who (whether by devise, bequest,
devolution, appropriation2 or otherwise) may be entitled thereto, either beneficially or as trustee or
personal representative, of any immovable property3 to which the testator or intestate4 was entitled or
over which he exercised a general power of appointment by his will5, and which devolved upon the
personal representative6.
6 Probate and Administration Act 1959 (Act 97) s 72(1). As to the devolution of immovable property on personal
representatives see [330.477].
[330.630]
Form of assent
An assent need not be in writing in respect of movable property except in the case of immovable
property1.
In the absence of written evidence, disputes or errors may arise about an oral assent or an implied
assent2 by personal representatives3 in favour of beneficiaries. Hence an assent should be evidenced by
a receipt or by the signed accounts of the personal representatives and in the case of immovable
property, unless sanctioned by an order of Court4 and made by a transfer in the form required by any
written law relating to the registration of title to land5, no such assent will be valid6.
1 See [330.631].
2 As to assent by implication see [330.628].
4 See [330.631]. For the meaning of 'Court' see [330.256] note 3.
5 See [330.631] note 2.

Page 466
[330.631]
Sanction of court required for assent
An assent for immovable property is only valid if sanctioned by an order of Court1 and made by a
transfer in the form required by any written law2 relating to the registration of title of land3.
2 See the National Land Code (Act No 56 of 1965) ss 346, 347 in relation to registration and the effects of registration.
3 Probate and Administration Act 1959 (Act 97) s 72(2). See also s 76(2).
[330.632]
Power of court in relation to assent
Notwithstanding an assent1, the court2 may, on the application of any creditor3 or other person
interested:
(1) order a sale, exchange, mortgage, charge, lease, payment, transfer or other transaction to
be carried out which the court considers requisite for the purpose of giving effect to the
rights of the person interested;
(2) declare that the person, not being a purchaser4, in whom the property5 is vested is a
trustee for those purposes;
(3) give directions respecting the preparation and execution of any conveyance or other
instrument, or as to any other matter required for giving effect to the order; or
(4) make any vesting order or appoint a person to convey in accordance with provisions of the
Trustee Act 19496.
1 As to the power to assent see [330.629].
3 See [330.419].
6 Ie the Trustee Act 1949 (Act 208) (see in particular s 48): Probate and Administration Act 1959 (Act 97) s 73(2). There is
no bar per se to the making of a vesting order vesting the land or interest therein to executors and trustees who may
require such a conveyance to call in and distribute the assets of the testator or to manage the affairs of the testator after
his death but an applicant must prove to the court's satisfaction that he is entitled to require for a conveyance of the land or
interest therein to him: Re Yap Boon Eng [2001] 6 MLJ 442.
Page 467
Administration and Succession/(2) Executors and Administrators/(5) Distribution of Assets/ G. Assents/ (iii)
Effect of an Assent
(iii) Effect of an Assent
[330.633]
Assent by personal representative
An assent1 by personal representatives2 indicates that the property is no longer held by them as
personal representatives. Personal representatives who are themselves trustees or devisees need not
assent to themselves, as no legal estate passes and there is the conveyancing advantage that a sole
personal representative can give a valid receipt for purchase money upon a sale of land3 whereas a sole
trustee (not being a trust corporation) cannot4. However, there is the disadvantage that upon his death
without having assented or conveyed, a grant of administration de bonis non5 is necessary.
3 See Re A Contract between Wee Poh Neo and Goona Veeragoo Naidoo [1936] MLJ 213.
5 See [330.435].
[330.634]
Right to follow property
An assent1, transfer or conveyance by a personal representative2 to a person other than a purchaser3

does not prejudice the rights of any person to follow the property4 to which the assent, transfer or
conveyance relates, or any property representing the same, into the hands of the person in whom it is
vested by the assent, transfer or conveyance, nor of any other person (not being a purchaser) who may
have received the same or in whom it may be vested5.
5 Probate and Administration Act 1959 (Act 97) s 73(1); see Lim Ah Yong v Khoo Khay Chan (1877) SLR Leic 384, where
a devisee under a will cannot without the assent of, or a conveyance to him by, the executor of the will maintain an action
for ejectment in respect of the property devised to him.
[330.635]
Page 468
Protection of purchaser
If no notice of a previous assent or conveyance affecting the deceased's estate has been placed on or
annexed to the probate or letters of administration, an assent or conveyance by a personal
representative1 in respect of that deceased's estate must be taken in favour of a purchaser2 as sufficient
evidence that the person in whose favour the assent or conveyance is given or made is the person
entitled thereto, either beneficially or as trustee or personal representative3.
3 See the Probate and Administration Act 1959 (Act 97) s 72(1).
[330.636]
Assents in relation to trusteeship
The power to assent1 is confined to personal representatives2, and difficulties can arise as to whether a
personal representative who may have fully administered and has become a trustee3 still has power to
assent and whether he needs to assent in his own favour as trustee4.
A personal representative who has fully administered the estate and holds the residue as a trustee is not
thereby necessarily and automatically discharged from his obligations as personal representative5.
1 See [330.629].
4 See [330.633].
5 See the Probate and Administration Act 1959 (Act 97) s 75 which provides that the personal representative of the
deceased may appoint trustee of the devise, legacy, residue or share for the minor, and on such appointment the personal
representatives is discharged from all further liability in respect of that devise, legacy, residue or share.
[330.637]
Stamp duty
The fact that the assent operates to vest immovable property in the person in whose favour it is made
does not render the assent liable to stamp duty where such duty would not otherwise be payable1.
1 See the Stamp Act 1949 (Act 378) s 4, Sch 1 item 32(i) as amended by the Finance Act 2012 (Act 742). As to stamp
duty see REVENUE (2013 Reissue) [480.437] and following.
Page 469
Administration and Succession/(2) Executors and Administrators/(5) Distribution of Assets/ H. Appropriation
H. APPROPRIATION
[330.638]
Powers of personal representative as to appropriation
Subject to certain provisions1, the personal representative2 may appropriate any part of the movable or
immovable property3, including things in action, of the deceased in the actual condition or state of
investment4 thereof at the time of appropriation in or towards satisfaction of any legacy5 bequeathed by
the deceased, or of any other interest or share in his property, whether settled or not, as to the personal
representative may seem just and reasonable, according to the respective rights of the persons interested
in the property of the deceased6.
1 An appropriation will not be made so as to affect prejudicially any specific devise or bequest: Probate and Administration
Act 1959 (Act 97) s 74(1) proviso (a). See also [330.639].
4 See [330.609].
6 Probate and Administration Act 1959 s 74(1). See Chia Chiew Neo (Spinster) v Tan Thian Chye [1932] MLJ 175 where it
was held that until there was a sale and the proper appropriations were made, the plaintiff beneficiary's share was not
immediately payable and she would not get her share before the date of distribution indicated in the will of the deceased
testator.
[330.639]
Consent required
Save as otherwise provided by the will of the deceased1, the exercise of the statutory power of
appropriation2 requires certain consents3.
If the appropriation is for the benefit of a person absolutely and beneficially entitled to possession, the
consent of that person is necessary4.
An appropriation of property5 made in respect of a settled legacy, share or interest6 requires the consent
of either the trustee, if any (not being also the personal representative7) or the person who may for the
time being be entitled to the income. If the person entitled to the income is a minor8 or a lunatic or
defective, the consent must be given on his behalf by his parents or parent, testamentary or other
guardian, committee or receiver, or if, in the case of a minor, there is no such parent or guardian9, by the
court10 on the application of his next friend11.
No consent is required on behalf of a person who may come into existence after the time of appropriation,
or who cannot be found or ascertained at that time12.
If no committee or receiver of a lunatic or defective has been appointed, then, if the appropriation is of an
investment13 authorised by law or by the will, if any, of the deceased for the investment of money subject
Page 470
to the trust, no consent is required on behalf of the lunatic or defective14.
If, independently of the personal representative, there is no trustee of a settled legacy, share or interest,
and no person of full age and capacity entitled to its income, no consent is required to the appropriation,
provided the appropriation is of an investment authorised by law or by the will of the deceased15.
The personal representative must, in making the appropriation, have regard to the rights of any person
who may thereafter come into existence, or who cannot be found or ascertained at the time of
appropriation, and of any other person whose consent is not required16.
1 See the Probate and Administration Act 1959 (Act 97) s 74(6). For the meaning of 'will' see [330.242] note 4.
2 See [330.638].
3 See the Probate and Administration Act 1959 s 74(1) proviso (b).
4 Probate and Administration Act 1959 s 74(1) proviso (b)(i).
6 A settled legacy, share or interest includes any legacy, share or interest to which a person is not absolutely entitled in
possession at the date of the appropriation, also an annuity: Probate and Administration Act 1959 s 74(8). As to annuities
see [330.571].
8 As to legacies to minors see [330.582] and following.
9 As to the guardianship of minors see [330.441].
11 Probate and Administration Act 1959 s 74(1) proviso (b)(ii).
12 Probate and Administration Act 1959 s 74(1) proviso (c).
13 See [330.609].
14 Probate and Administration Act 1959 s 74(1) proviso (d).
15 Probate and Administration Act 1959 s 74(1) proviso (e).
[330.640]
Effect of appropriation under statutory power
Any property1 duly appropriated under the statutory power of appropriation2 is thereafter treated as an
authorised investment and may be retained or dealt with accordingly3.
The appropriation binds all persons interested in the property of the deceased whose consent is not
requisite to the appropriation4.
Where an appropriation is made in respect of a settled legacy, share or interest5, the property
appropriated remains subject to all trusts for sale and powers of leasing, disposition and management or
varying investments6 which would have been applicable thereto or to the legacy, share or interest in
respect of which the appropriation is made, if no such appropriation had been made7.
If after any immovable property has been appropriated, the person to whom it was transferred or
conveyed, disposes of it or any interest in it, then, in favour of a purchaser for money or money's worth8,
Page 471
the appropriation is deemed to have been made in accordance with the statutory power to appropriate and
after all requisite consents9 if any, had been given10.
2 See [330.638].
5 See [330.639] note 6.
6 As to investments see [330.609].
8 See the Probate and Administration Act 1959 s 74(8).
9 See [330.639].
[330.641]
Valuation
For the purposes of the statutory power of appropriation1, the personal representative2 may ascertain and
fix the value of the respective parts of the movable and immovable property3 and the liabilities of the
deceased as he may think fit, and must for that purpose employ a duly qualified valuer in any case where
such employment may be necessary, and may make any transfer or conveyance (including an assent4)
which may be requisite for giving effect to the appropriation5.
1 See [330.638].

Page 472
Administration and Succession/(2) Executors and Administrators/(5) Distribution of Assets/ I. Ademption
I. ADEMPTION
[330.642]
Nature of ademption
The asset must be in existence at the time of the testator making the will, for ademption to arise1. The
doctrine of ademption applies where a testator gives a specific devise or a specific legacy2 in his will to or
for the benefit of a beneficiary for a particular purpose, and which devise or legacy or part thereof, in
priority of any pecuniary legacy3 bequeathed under the testator's will, is afterwards expended for such
purpose before the death of the testator4.
1 Low Gim Har v Low Gim Siah [1992] 2 SLR 593 where it was held that ademption had not taken place by the signing of
the shareholders' agreement or execution of the assurances of the deceased. As to methods of ademption see [330.061].
3 See [330.527].
4 In Lim Soo Siam v Leow Yong Moey [1933] 2 MLJ 214, since the testator paid for the wedding expenses of his daughter
during his lifetime, the legacy to the daughter was said to have been partially adeemed at the death of the testator.
[330.643]
Failure by the absence of the subject-matter
In the absence of specific provision in the will providing for the contingency of ademption, then ademption1
arises in the failure of a specific legacy2 by the absence at the death of the testator, of the subject matter
of the gift either by destruction or conversion into something else by the act of the testator or by duly
constituted authority. The doctrine of equitable election3 and ademption applies in such an event when
distributing the property under the will4.
1 As to the nature of ademption see [330.642]; as to the methods of ademption see [330.061].
3 Re William Russell (1813) 2 Ky Ecc 6.
4 Lee Seang Neoh v Low Hin Tuan [1925] 5 FMSLR 154, where a testator executed bogus voluntary transfers of his land to
members of his family, neither an executor nor a beneficiary can assail them although a creditor may do so.
Page 473
Administration and Succession/(2) Executors and Administrators/(5) Distribution of Assets/ J. Satisfaction
J. SATISFACTION
[330.644]
Doctrine of satisfaction
Where a debt is owed by the testator at the time of his death, and in the testator's will, there is a legacy1 to
the legatee with no contrary intention2, an inference can be drawn by the personal representative3 that the
legacy is in satisfaction of the debt so owed to the legatee. This doctrine applies subject to the following
conditions:
(1) the debt must precede the will;

(2) the amount of the legacy must equal or exceed the amount of the debt;
(3) the legacy must be as advantageous to the creditor4 as the debt;
(4) the nature of the debt must be the same as that of the legacy; and
(5) there is no contrary intention in the will5.
4 See [330.419].
5 AR Mellows The Law of Succession (4th Edn, 1983).

Page 474
Administration and Succession/(2) Executors and Administrators/(6) Intestate Succession/ A. Introduction/ (i)
General
(6) INTESTATE SUCCESSION

A. INTRODUCTION
(i) General
[330.645]
Rules of intestate succession
The rules of intestate succession are laid down by statute1 and govern the distribution of the estates of
intestates, subject to the court's overriding power in relation to family provision2. They apply to all
property of which the deceased owner died intestate3.
1 The relevant statute is the Distribution Act 1958 (Act 300) which applies only to non-Muslims while Muslims are governed
by the Islamic law of succession and customary law. With effect from 12 December 1986, the application of this Act has
been extended to Sarawak: see the Extension to the State of Sarawak Order 1986 (PU (A) 446/1986). Sabah retains its
own Intestate Succession Ordinance 1960 (Ord No 1 of 1960).
2 See [330.617] and following. The Inheritance (Family Provision) Act 1971 (Act 39) applies throughout Malaysia but does
not apply to the estates of deceased Muslims or natives of any of the States in East Malaysia: s 2. As to an example of
distribution according to native customary law of inheritance see Probate Officer, Sarikei v Sidang anak Udin [1977] 1 MLJ
60. See also Jaya bin Asahak v Munggau ak Lawai [2010] 6 MLJ 224.
3 'Intestate' includes a person who leaves a will but dies intestate as to some beneficial interest in his property: Distribution
Act 1958 s 3. See also [330.646].
[330.646]
Intestacy
Intestacy1 may be either total or partial. Total intestacy occurs where a person leaves no will or if he
does, he makes no effective testamentary disposition2 of any the property of which he is competent3 to
dispose of by will. Partial intestacy4 occurs where the testator's will though partly effective, either:
(1) altogether fails5 to dispose of some specific property of his;

(2) having purported to dispose of all his property, has failed to dispose effectively of some
interest which has arisen in consequence of the will6, as for instance a life interest; or
(3) where there is no general residuary clause in the will7.
1 See [330.246] note 5; [330.416] note 2.
3 As to testamentary capacity see [330.009] and following.
4 See the Distribution Act 1958 (Act 300) s 8 and [330.662], [330.663]. See also Re Tan Lian Boh (decd) [1951] MLJ 187. '
cases of partial intestacy would only arise under the Distribution Act 1958 s 8 which, where relevant, provides that where
Page 475
any person dies leaving a will beneficially disposing of part of his property, the provisions of the Distribution Act 1958 will
have effect as respect the part of his property not so disposed of, subject to the provisions contained in the will. Hence, s 8
regulates cases of partial intestacy in which a testator has made a will wherein only a part of his property is to be disposed
of under his will, while the other part is not included in his will, as a result of which, only the part included in the will, will be
dealt with by way of testamentary disposition': Tay Seck Loong @ Tay Seck Long v Teh Chor Chen [2005] 7 MLJ 612 at
620-621 per Low Hop Bing J (as he then was).
5 As to failure of gifts see [330.046] and following.
6 Re Tan Lian Boh (decd) [1951] MLJ 187.
7 Tengah Chee Nachiar v Nacodah Merican (1887) 4 Ky 265.

Page 476
Administration and Succession/(2) Executors and Administrators/(6) Intestate Succession/ A. Introduction/ (ii)
Capacity to take under an Intestacy
(ii) Capacity to take under an Intestacy
[330.647]
Illegitimate and legitimated children
Illegitimate children were not included as issue1 within the meaning of the statutory provisions relating to
succession on intestacy2. However, statutory provisions have conferred on a legitimated person3 and his
spouse, children or more remote issue, the right to take any interest in the estate of an intestate4 dying
after the date of legitimation5 in like manner as if the legitimated person had been born legitimate6.
Where, on or after the prescribed date7, the mother of an illegitimate child, the child not being a
legitimated person, dies intestate as respects all or any of her property, and does not leave any
legitimate issue surviving her, the illegitimate child, or if he is dead, his issue, will be entitled to take any
interest in the property to which he or his issue would have been entitled if he had been born legitimate8.
Where, on or after the prescribed date, an illegitimate child dies intestate as respects all or any of his
property, his mother, if surviving, will be entitled to take any interest in the property to which she would
have been entitled if the child had been born legitimate and she had been the only surviving parent9.
1 See [330.402] note 13.
2 See Shamugam v Pappah [1994] 1 MLJ 144; Chua Kim Suan v Ang Mek Chong [1988] 3 MLJ 231.
3 'Legitimated person' means a person legitimated by the Legitimacy Act 1961 (Act 60) or by any of the written laws
repealed by the Legitimacy Act 1961, ie the Legitimacy Enactment of the Federated Malay States (Cap 69), the Legitimacy
Enactment of the State of Johore (Enactmenty 19 of 1936) and the Legitimacy Ordinance of the Straits Settlements (Cap
85): Legitimacy Act 1961 s 2(1). See also FAMILY LAW (2013 Reissue) [390.195] and following.
4 'Intestate' includes a person who leaves a will but dies intestate as to some beneficial interest in his estate; and 'will'
includes a codicil: Legitimacy Act 1961 s 2(1). See also [330.645] note 3.
5 'Date of legitimation' means the date of the marriage leading to the legitimation or, where the marriage occurred before
the prescribed date, the prescribed date: Legitimacy Act 1961 s 2(1). As to what is the prescribed date see note 7 below.
7 'Prescribed date' means: (1) in the case of the states of Perak, Selangor, Negeri Sembilan and Pahang, 1 January 1933;
(2) in the case of the states of Johore, Malacca and Penang, 1 July 1936; (3) in the case of the states Kedah, Kelantan,
Trengganu and Perlis, 23 March 1961; and (4) in the case of the states Sabah and Sarawak, 1 January 1972: Legitimacy
Act 1961 s 2(1).
[330.648]
Adopted children
Notwithstanding the provisions of any written law relating to the distribution of intestate estates for the
Page 477
time being in force in any part of Malaysia1 to the contrary, the expression 'child'2 will include a child
adopted under the provisions of the Adoption Act 19523, but not a child adopted otherwise4.
1 See [330.645].
2 For the meaning of 'child' see [330.195] note 5.
3 Ie the Adoption Act 1952 (Act 257). As to adoption see generally FAMILY LAW (2013 Reissue) [390.002] and following.
4 Adoption Act 1952 s 29.

Page 478
Administration and Succession/(2) Executors and Administrators/(6) Intestate Succession/ B. Deaths
Intestate after 1997/ (i) Rights of Surviving Spouse
B. DEATHS INTESTATE AFTER 1997
(i) Rights of Surviving Spouse
[330.649]
Surviving spouse's rights where there is no issue
If an intestate1 dies leaving a spouse2 and no issue3 and no parent4 or parents, the surviving spouse
takes the whole residuary estate absolutely5.
If the intestate dies leaving no issue but a spouse and a parent or parents, the surviving spouse is
entitled to one-half of the estate and the parent or parents the remaining one-half6.
1 For the meaning of 'intestate' see [330.645] note 3. As to intestacy see [330.646].
2 There must be a marriage before a woman can qualify as a wife or spouse: Chia Siew Li v Liew Khey Cheong (as
administrator of the estate of Liew Fatt Cheong, decd)[2010] 3 MLJ 802, CA , where the Court of Appeal held that the
plaintiff was outside the ambit of the word 'spouse' in the Distribution Act 1958 s 6(1)(b) because the plaintiff had not
become the wife of the deceased pursuant to the Law Reform (Marriage and Divorce) Act 1976 (Act 164) and accordingly
the plaintiff was not entitled to one-half of the residuary estate.
3 For the meaning of 'issue' see [330.402] note 13.
4 For the meaning of 'parent' see [330.402] note 14.
5 Distribution Act 1958 s 6(1)(a).
6 Distribution Act 1958 s 6(1)(b). As to the entitlement of parents where there is a surviving spouse see [330.658].
[330.650]
Surviving spouse's rights where deceased leaves issue
If an intestate1 dies leaving a spouse and issue2 but no parent3 or parents, the surviving spouse takes
one-third of the estate and the issue the remaining two-thirds4. If the trusts in favour of the issue of the
intestate5 fail because no child6 or other issue attains an absolutely vested interest, the residuary estate
devolves as if the intestate had died without leaving issue7.
1 For the meaning of 'intestate' see [330.645] note 3. As to intestacy see [330.646].
2 As to meaning of 'issue' see [330.402] note 13.
4 Distribution Act 1958 (Act 300) s 6(1)(e) (as amended by the Distribution (Amendment) Act 1997 (Act A1004) s 3(a)).
See Re Lua Kin Suai [1998] 7 MLJ 258. As to the rights of issues see [330.655]-[330.657].
5 As to statutory trusteeship see [330.656].
6 For the meaning of 'child' see [330.402] note 13. See also [330.648].
Page 479
7 Distribution Act 1958 s 7(3).
[330.651]
Death of judicially separated spouse
If, on the death of one of the parties to a marriage, a decree of judicial separation is in force, the property
of the deceased spouse will, in case he dies intestate, go as it would have gone if the other party to the
marriage has been then dead1.
1 Law Reform (Marriage and Divorce) Act 1976 (Act 164) s 66(1). See [330.407]. As to judicial separation see FAMILY LAW
(2013 Reissue) [390.397]-[390.400].
[330.652]
Divorce
Where a marriage is void or has been annulled or dissolved by a decree absolute of divorce1 and one
party to the marriage dies intestate, the other is not a surviving husband or wife and therefore takes no
interest in the estate2.
1 See [330.407]. As to nullity of marriage and divorce see generally FAMILY LAW (2013 Reissue) [390.255] and following.
2 Suci Mathews v Thomas Mathews [1985] 2 MLJ 228.
[330.653]
Reversionary interest
Where trust1 property includes any share or interest in property not vested in the trustees, or the
proceeds of the sale of any such property, or any other thing in action, the personal representatives2 and
trustees on the same falling into possession, or becoming payable or transferable may, without being
responsible in any such case for any loss3 occasioned by any act or thing so done by them in good faith:
(1) agree or ascertain the amount or value thereof or any part thereof in such manner as they
may think fit4;
(2) accept in or towards satisfaction thereof, at the market or current value, or upon any
valuation or estimate of value which they may think fit, any authorised investments5;
(3) allow any deductions for duties, costs, charges and expenses which they may think proper
or reasonable6; and
(4) execute any release in respect of the premises so as effectually to discharge all
accountable parties from all liability in respect of any matters coming within the scope of
such release7.

Page 480
3 See the Trustee Act 1949 (Act 208) s 27(2)-(4).
4 Trustee Act 1949 s 27(1)(a). As to the valuation of reversionary interest see [330.654].
5 Trustee Act 1949 s 27(1)(b). As to investments see [330.609].
6 Trustee Act 1949 s 27(1)(c).
7 Trustee Act 1949 s 27(1)(d).
[330.654]
Valuation of reversionary interest
Personal representatives1 may, for the purpose of giving effect to the trust2, from time to time (by duly
qualified agents3) ascertain and fix the value of any trust property in such manner as they think proper4,
and any valuation so made in good faith is binding upon all persons interested under the trust5.
3 As to the power to employ agents see [330.560].
4 See [330.653].
5 Trustee Act 1949 (Act 208) s 27(3).

Page 481
Intestate after 1997/ (ii) Rights of Issue under Statutory Trusts
(ii) Rights of Issue under Statutory Trusts
[330.655]
Issue
Where an intestate1 dies leaving issue2 but no surviving spouse and no parent3 or parents, the surviving
issue are entitled to the whole of the residuary estate4 upon the statutory trust5. Where the intestate dies
leaving a spouse, issue and parent or parents, the surviving spouse is entitled to one-quarter, the parent
or parents one-quarter while the issue the remaining one-half of the residuary estate6. If the intestate
dies leaving no spouse but issue and a parent or parents, the surviving issue are entitled to two-thirds of
the estate and the parent or parents the remaining one-third7.
4 Distribution Act 1958 (Act 300) s 6(1)(c) (as amended by the Distribution (Amendment) Act 1997 (Act A1004) s 3(a)).
5 See [330.656].
6 Distribution Act 1958 s 6(1)(g).
7 Distribution Act 1958 s 6(1)(f).
[330.656]
Statutory trusteeship
Statutory trusteeship arises in favour of issue1 and other classes of relatives2 of an intestate3. The effect
of such trusts is to create a per stirpes distribution, that is through each stock of descent but that no
issue takes whose parent4 is still living at the intestate's death and so capable of taking5.
Distribution under such statutory trusteeship involves ascertaining the position of the intestate's children6
at his death. All the children of the intestate will be entitled to an equal share of the intestate's estate.
Where a child of the intestate has predeceased the intestate but has left issue surviving on the death of
the intestate, the issue of such child are entitled to the share which the parent would have taken had the
parent survived the intestate. Children who have predeceased the intestate without leaving issue
surviving on the death of the intestate will not be entitled. Similarly, children of children, that is
grandchildren who have predeceased the intestate will also not be entitled7.
Under such statutory trust, an issue will be immediately and absolutely entitled to his share once he
attains a vested interest at the age of majority8 or on marriage if under that age. Issue take on statutory
trusts under which grandchildren take by representation or substitution per stirpes9.
The shares of children who have not attained a vested interest will be held for them under statutory trusts
Page 482
contingent on their attaining the age of majority or marrying under that age. If all the children or issue
taking under the deceased children's shares fail to attain a vested interest, the estate will be distributed
as if the intestate had left no issue10.
1 See the Distribution Act 1958 (Act 300) s 6(1)(h) (as amended by the Distribution (Amendment) Act 1997 (Act A1004) s
3(a)). For the meaning of 'issue' see [330.402] note 13.
2 See the Distribution Act 1958 (Act 300) s 6(1)(i). As to the rights of relatives see [330.658]-[330.660].
5 See the Distribution Act 1958 s 7(1).
6 For the meaning of 'child' see [330.402] note 13.
7 Distribution Act 1958 (Act 300) s 7(1).
8 See [330.009] note 2.
9 See the Distribution Act 1958 s 7(1).
10 Distribution Act 1958 s 7(3).
[330.657]
Advancement taken into account
Capital money subject to a trust1 may at any time or times be paid or applied by personal
representatives2 and trustees, for the advancement or benefit as the personal representatives and
trustees think fit in their absolute discretion, of any person entitled to the capital of the trust property or of
any share thereof, whether absolutely or contingently on his attaining any specified age or on the
occurrence of any other event, or subject to a gift over on his death under any specified age or on the
occurrence of any other event, and whether in possession or in remainder or reversion, and such
payment or application may be made notwithstanding that the interest of such person is liable to be
defeated by the exercise of a power of appointment or revocation, or to be diminished by the increase of
the class to which he belongs3; provided that if that person is or becomes absolutely and indefeasibly
entitled to a share in the trust property the money so paid or applied must be brought into account as
part of the share4.
4 Trustee Act 1949 s 37 proviso (b); cf see [330.612].

Page 483
Intestate after 1997/ (iii) Rights of other Relatives
(iii) Rights of other Relatives
[330.658]
Parents where there is a surviving spouse
Where an intestate1 dies leaving no issue2 but a spouse and a parent3 or parents, the surviving spouse
is entitled to one-half of the residuary estate4 and the parent or parents the remaining one-half; and if
there are two parents, in equal shares absolutely5.
4 See [330.649].
5 Distribution Act 1958 (Act 300) s 6(1)(b).
[330.659]
Parents where there is no surviving spouse
Where an intestate1 dies leaving no spouse and no issue2 but a parent3 or parents, the parents take the
residuary estate in equal shares absolutely, or if there is only one parent, that parent takes the whole
estate absolutely4. The parents to take must be relations in blood and so step-parents and parents by
marriage are excluded.
4 Distribution Act 1958 (Act 300) s 6(1)(d) (as amended by the Distribution (Amendment) Act 1997 (Act A1004) s 3(a)). As
to the entitlement of parents where there is no surviving spouse but surviving issue see [330.655].
[330.660]
Other relatives where there is no surviving spouse
Where an intestate1 dies leaving no spouse, issue2, parent3 or parents, then the residuary estate will be
held on trust4 for the following persons living at the intestate's death and in the following order:
(1) brothers and sisters;

Page 484
(2) grandparents;
(3) uncles and aunts;
(4) great grandparents;
(5) great grand uncles and great grand aunts,
and if there are more than one in each class, then the members of that class will take in equal shares5.
4 See [330.656].
5 Distribution Act 1958 (Act 300) s 6(1)(i) (as amended by the Distribution (Amendment) Act 1997 (Act A1004) s 3(a)). For
the purposes of distribution there is no distinction between those who are related to the deceased person through his
father and those who are related to him through his mother, nor between those who are related to him by the full blood and
those who are related by the half blood, nor between those who were actually born in his lifetime and those who at the
date of his death were only conceived in the womb but who have subsequently been born alive: Distribution Act 1958 s 5.
Page 485
Intestate after 1997/ (iv) Rights of the Government
(iv) Rights of the Government
[330.661]
Bona vacantia
In default of any person taking an absolute interest as provided by law1, the Government of Malaysia is
entitled to the whole of the estate2 except in so far as the same consists of land3.
1 Ie the Distribution Act 1958 (Act 300) s 6(1)(a)-(i) (as amended by the Distribution (Amendment) Act 1997 (Act A1004) s
3(a)): see [330.664].
2 Oh Wee Kee v Boon Bong Neoh (1882) 1 Ky 544; Re Soo-Hoo Hem Leng [1963] MLJ 38.
3 Distribution Act 1958 s 6(1)(j). See also the Civil Law Act 1956 (Act 67) s 24.
Page 486
Intestate after 1997/ (v) Partial Intestacy
(v) Partial Intestacy
[330.662]
Occurrence of partial intestacy
Partial intestacy occurs where the testator dies leaving a will beneficially disposing of part of his
property1, whereby statutory provisions on intestate succession2 will have effect as respects the part of
his property not so disposed of3, subject to the provisions contained in the will4. The personal
representative5 is, subject to his rights and powers for the purposes of administration, a trustee for the
persons entitled under such statutory distribution6 in respect of the part of the estate not expressly
disposed of unless it appears by the will that the personal representative is entitled to take such part
beneficially7.
1 HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383 where the word 'property' was given a narrow interpretation
by the court to refer to specific assets of the deceased that were available for distribution only.
2 See [330.645].
3 Partial intestacy occurs when there is no general residuary clause in the will: see Tengah Chee Nachiar v Nacodah
Merican (1887) 4 Ky 265; Re Tan Lian Boh (decd) [1951] MLJ 187.
4 Distribution Act 1958 (Act 300) s 8. The test for applying this provision is not whether there is a will, but whether there is
a will effectively disposing of the deceased's property. This provision is similar in essence to the Civil Law Act 1956 (Act
67) s 21.
7 Distribution Act 1958 s 8 proviso. As to legacies to personal representatives see [330.580], [330.581].
[330.663]
Law regulating distribution
The distribution of the movable property of a person deceased is regulated by the law of the country in
which he was domiciled at the time of his death1. However, the distribution of the immovable property of
a person deceased intestate2 is regulated by intestate succession3 wherever he may have been
domiciled at the time of his death4.
1 Distribution Act 1958 (Act 300) s 4(1); see [330.614]. See also HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ
383.
3 See [330.645].
4 Distribution Act 1958 s 4(2); see [330.615].

Page 487
Page 488
Intestate after 1997/ (vi) Table of Distribution on Intestacy
(vi) Table of Distribution on Intestacy
[330.664]
Distribution on death on or after 31 August 1997
Where a person dies intestate1 on or after 31 August 19972 his estate is to be distributed or held on
trusts3 as follows:
Distribu-
tion of
Estate
Where surviving relat- Where no surviving rel- Where surviving Where no surviving
ives atives spouse spouse
1. issue4 parents5 all to surviving spouse6
2. parents issue spouse 1/2 parents7
1/2
3. issue parents all to issue8
4. parents issue all to parents9
5. issue parents spouse 1/3 issue 2/310
6. issue and parents issue 2/3 parents11 1/3
7. issue and parents spouse 1/4 parents 1/4
issue12 1/2
8. brothers and sisters parents and issue all to brothers and sis-
ters in equal shares
9. grand-parents parents, issue, broth- all to grand-parents in
ers and sisters equal shares
10. uncles and aunts parents, issue, broth- all to uncles and aunts
ers, sisters and grand- in equal shares
parents
11. great grand-parents parents, issue, broth- all to great grandpar-
ers, sisters and grand- ents in equal shares
parents
Where surviving relat- Where no surviving rel- Where surviving Where no surviving
ives atives spouse spouse
12. great grand-uncles and parents issue, broth- all to great grand-
aunts ers, sisters, grand- uncles and aunts in
parents and great equal shares13
grand parents

Page 489
2 Ie the coming into force of the Distribution (Amendment) Act 1997 (Act A1004); see also [330.402] note 12.
3 See the Distribution Act 1958 (Act 300) s 6(1) (as amended by the Distribution (Amendment) Act 1997 s 3). The three
new distinct features introduced by the amendment are: (1) there is now no distinction between a wife and a husband in
relation to the right of inheritance to the estate of the deceased spouse (see [330.649] and following); (2) parents are now
entitled to a fair share of the estate of a person dying intestate like the surviving spouse and issue (see [330.658],
[330.659]); and (3) the issue now gets the main share in the estate of the deceased parent whether or not the spouse
and/or the parents of the deceased survive the deceased (see [330.655]). Before the amendment, the wife was entitled to
an inferior right of inheritance when her husband died intestate while the husband was entitled to the whole of the estate of
the deceased wife notwithstanding there were surviving issues. In KB Thurausisingham v Dr Mrs Vijayalakshmi
Sivaprakasapillai [2007] 6 MLJ 333, it was noted that a beneficiary under intestacy has no interest in property in the
personal estate of the deceased until the estate had been fully administered and the distribution made.
6 Distribution Act 1958 s 6(1)(a); see [330.649].
7 Distribution Act 1958 s 6(1)(b); see [330.649].
8 Distribution Act 1958 s 6(1)(c); see [330.655]. As to statutory trusteeship see [330.656]. See also Ong Ah Moy v Nga Ah
Fan [1978] 1 MLJ 177, FC , where the appellant intervened to be added as a respondent on the contention that she was a
lawful daughter and a beneficiary of the deceased estate and therefore entitled to an equal share in the estate with the
other children of the deceased.
9 Distribution Act 1958 s 6(1)(d); see [330.659].
10 Distribution Act 1958 s 6(1)(e); see [330.650]. See also Re Lua Kin Suai [1998] 7 MLJ 258.
11 Distribution Act 1958 s 6(1)(f); see [330.655].
12 Distribution Act 1958 s 6(1)(g); see [330.655].
13 Distribution Act 1958 s 6(1)(i); see [330.660].

Page 490
Administration and Succession/(2) Executors and Administrators/(7) Administration and Determination of
Questions by the Court/ A. General Administration
(7) ADMINISTRATION AND DETERMINATION OF QUESTIONS BY THE COURT

A. GENERAL ADMINISTRATION
[330.665]
Jurisdiction
The High Court of Malaya exercises a supervisory jurisdiction under which executors1, administrators2 or
trustees3 are entitled to the guidance of the court, in the administration of estates and the execution of
trusts (including the distribution4 of fully administered estates). Beneficiaries5 and persons having claims
against the estate may obtain an order for administration or execution of trusts by the court6.
3 See [330.538], [330.656].
5 Goh Liew Kee @ Goh Ah Nya v C Moosa bin Haji Abdullah [1993] 1 AMR 215, where the court held that notwithstanding
the applicant and the deceased were of different religion and customs, the common law only requires that a marriage be
proved by the existence of an agreement between the parties, which had clearly been shown, the applicant is the lawful
widow and relict and sole next of kin of the deceased and is entitled to succeed to the whole of the estate of the deceased.
6 See [330.673].
[330.666]
Administration by Amanah Raya Berhad
The Corporation1 may, on its own application or on the application of any other person be granted probate
of will or letters of administration by the court2. The court may on the application of any person beneficially
interested, appoint the Corporation3 if sufficient cause is shown, in place of all or any existing executors4,
administrators5 or trustees6.
1 See [330.247] note 1. See also Re Mark Johnson (decd) [1950] MLJ 230 where the court held that the Public Trustee
appointed under the Public Trustee Act 1950 (Act 247) (repealed by the Public Trust Corporation Act 1995 (Act 532) s 43)
was not authorised by statute to petition for letters of administration. As to the functions and powers of the Corporation see
[330.247].
3 The objective of corporatising the office of the Public Trustee has been said to conform with the National Privatisation
Policy. Hence the vesting of all properties, rights and liabilities of the Public Trustee and of the Official Administrator in
respect of the administration of trusts and estates has by virtue of the Public Trust Corporation Act 1995 been transferred to
the Amanah Raya Bhd.

Page 491
6 Public Trust Corporation Act 1995 s 14(1). See [330.413]-[330.416].
[330.667]
Beginning administration proceedings
An administration action1 may be begun by writ or originating summons2. A writ is normally appropriate
where there is likely to be a substantial dispute of fact3 or where fraud4 or breach of trust5 is alleged. An
originating summons is appropriate for construing a document and in other cases where there is unlikely
to be any substantial dispute of fact6.
1 'Administration action' means an action for the administration under the direction of the court of the estate of a deceased
person or for the execution under the direction of the court of a trust: RC O 80 r 1.
2 RC O 5 r 4(1). As to proceedings which may be begun by writ or originating summons see CIVIL PROCEDURE (2014
Reissue) [190.2-005].
3 RC O 5 r 4(1)(b); see Re Tay Geok Teat (decd) [1934] MLJ 83, CA (Sing) , where the legitimacy of the plaintiff is
challenged, the court may order the issue to be tried with pleadings; Foon Seong v Chan San Choon [1947] MLJ 85; John
Henry Ponnampalam v Ng Teong Kiat Rubber Works [1950] MLJ 89; Ong Yok Chu v Yong Teck Fong [1960] MLJ 292. See
also Ponniah v Chinniah [1961] MLJ 66, CA , where the proceedings by originating summons in such cases is not fatal to
the applicant's case; Ng Wan Siew v Teoh Sin [1963] MLJ 103, CA ; Ooi Bee Tat v Ooi Bee Tat Development [1984] 2 CLJ
119.
4 RC O 5 r 2.
5 See RC O 80 r 2 and Re Tan Tye (decd), Tan Lian Chye v Estate & Trust Agencies (1927) Ltd [1963] MLJ 373. As to
proceedings which must be begun by writ of summons see CIVIL PROCEDURE (2014 Reissue) [190.2-004].
6 RC O 5 r 4(1).
[330.668]
Service of process
Where a writ1 or originating summons2 is issued by any person other than the executors3 or
administrators4 it must be served upon them5. Where it is issued by an executor or administrator it must,
generally speaking, be served upon the persons whose interests are affected by the questions raised6.
1 As to proceedings which must be begun by writ of summons see CIVIL PROCEDURE (2014 Reissue) [190.2-004].
2 As to proceedings which may be begun by writ or originating summons see CIVIL PROCEDURE (2014 Reissue) [190.2-005].
5 See RC O 80 r 3(1).
6 See RC O 80 r 3(2).
[330.669]
Service out of jurisdiction

Page 492
Service out of jurisdiction of a writ1 or notice of a writ2 is permissible with leave of the court if the action is
for the administration of the estate of a person who died domiciled within the jurisdiction or if the action
begun by the writ is for any relief or remedy which might be obtained in any such administration action3.
1 As to proceedings which must be begun by writ of summons see CIVIL PROCEDURE (2014 Reissue) [190.2-004].
2 See RC O 11 r 1(1).
3 RC O 11 r 1(1)(D). For the meaning of 'administration action' see [330.667] note 1.
[330.670]
Appeals
Appeals lie from the High Court to the Court of Appeal from any judgment order or decision of a judge1.
1 See the Courts of Judicature Act 1964 (Act 91) s 67, and RC O 56 r 2 (appeals from decision of a judge in chambers); and
as to such appeals see also CIVIL PROCEDURE (2014 Reissue) [190.11-002] and following.
Page 493
Questions by the Court/ B. Determination of Questions
B. DETERMINATION OF QUESTIONS
[330.671]
Right of personal representatives to guidance of the court
Where questions of difficulty arise in the administration1 or distribution2 of an estate, the personal
representatives3 are entitled to have those questions determined by the court4, unless all the persons
concerned, being sui juris and between them absolutely entitled, determine the matter by agreement.
An action may be brought for the determination of any question or for any relief which could be determined
or granted, as the case may be, in an administration action5 and a claim need not be made in the action
for general administration6.
1 As to the administration of estates see [330.498] and following.
4 As to the determination of questions without administration see RC O 80 r 2(2), (3) and [330.672]. See also Khaw Cheng
Bok v Khaw Cheng Poon [1998] 3 MLJ 457.
5 For the meaning of 'administration action' see [330.667] note 1.
6 RC O 80 r 2(1); see Sok-Chun Tang v Vincent Tang Fook Lam [1999] 2 MLJ 274.
[330.672]
Determination of questions without administration
An action may be brought for the determination of any of the following questions:
(1) any question arising in the administration of the estate1 of a deceased person or in the
execution of a trust2;
(2) any question as to the composition of any class of persons with claims against or interests in
an estate or trust3; and
(3) any question as to the rights or interests of creditors4 or beneficiaries5.
Actions may be brought for orders requiring an executor6, administrator7 or trustee to: (a) furnish or verify
accounts8; (b) pay money into court in his capacity as such9; (c) do or abstain from doing a particular act
in his capacity as such10; (d) approve any sale, purchase, compromise or other transaction by him in his
capacity as such11; or (e) direct any act to be done which the court could order to be done if the estate or
trust were being administered or executed as the case may be, under the direction of the court12.
1 As to the administration of estates see [330.498] and following.
2 RC O 80 r 2(2)(a). An example is an application for directions whether the executors should apply the rule in Allhusen v
Page 494
Whittell (1867) LR 4 Eq 295, [1861-73] All ER Rep 149. As to trusteeship see [330.538], [330.656].
3 RC O 80 r 2(2)(b). This will include inquiries directed to clearing up any difficulty in ascertaining the identity of objects of
the testator's bounty: see eg Re Gansloser's Will Trusts, Chartered Bank of India, Australia and China v Chillingworth [1952]
Ch 30, [1951] 2 All ER 936, CA (Eng) , where the meaning of 'relation' was discussed. As to the distribution of assets see
4 See [330.419]. Where the question of the existence of a debt is simply a question of law it can be determined better upon
originating summons than by writ, but if it depends on disputed questions of fact an originating summons is not appropriate:
see Re Powers, Lindsell v Phillips (1885) 30 Ch D 291, [1881-85] All ER Rep 971, CA (Eng) ; Re Wenham, Hunt v Wenham
[1892] 3 Ch 59.
5 RC O 80 r 2(2)(c).
8 RC O 80 r 2(3)(a). See Woon Mooi Hua v Tan Kay Swee [1971] 1 MLJ 169 where the personal representatives claimed
for, inter alia, accounts; Chan Mui Eng v Chua Chu Huwe [1994] 1 SLR 375; Khaw Cheng Bok v Khaw Cheng Poon [1998] 3
MLJ 457. See also [330.454].
9 RC O 80 r 2(3)(b). See also [330.558], [330.559].
10 RC O 80 r 2(3)(c). A typical application under this heading is one seeking directions as to whether to take or defend legal
proceedings. For the procedure where the proposed defendants are also beneficiaries affected by the success or failure of
the proceedings see Re Moritz, Midland Bank Executor and Trustee Co Ltd v Forbes [1960] Ch 251, [1959] 3 All ER 767
and Re Eaton, Shaw v Midland Bank Executor and Trustee Co Ltd [1964] 1 All ER 229, [1964] 1 WLR 1269. Another typical
application is for directions whether to carry on the deceased's business. It is the duty of the personal representative to
honour the deceased's contracts: see Ahmed Angullia; bin Hajee Mohamed; Salleh Angullia v Estate and Trust Agencies
(1927) Ltd [1938] MLJ 185, PC . Apart from any special directions in the will an executor only has power to carry on the
testator's business with a view to a sale: see Balkis Nachial v Achi Thayar Ammal [1929] SSLR 3. He will, however, be
personally liable upon all contracts of the business he makes (eg borrowing money) (see Cheah Wong Nyan v Palaniappa
[1935] MLJ 31) even if he expressly contracts as personal representative (see Bank Bumiputra Malaysia Bhd v Yap Kiow
Moi [1973] 2 MLJ 104), although, provided he carries on the business properly, he will be entitled to an indemnity out of the
estate (Re Evans, Evans v Evans (1887) 34 Ch D 597).
11 RC O 80 r 2(3)(d). See [330.540] and following. It should be particularly observed that this rule does not authorise the
court to order a sale or other transaction; the court's powers are limited to approving a sale or other transaction, which the
personal representatives might have made without any application to court: see Re Robinson, Pickard v Wheater (1885) 31
Ch D 246.
12 RC O 80 r 2(3)(e). See Rachael Mei Ling Ong v Dato' Bruno Henry Almeida [1998] 3 CLJ 71, [1998] 1 AMR 600. A
typical example is an application for leave to distribute the estate on the footing that a particular beneficiary did not survive
the deceased. Where a person has not been heard of for seven years by those who would expect to hear of him, there is a
general presumption that he is dead: Re Aldersey, Gibson v Hall [1905] 2 Ch 181, [1904-7] All ER Rep 644. See also the
Evidence Act 1950 (Act 56) s 108 and EVIDENCE (2011 Reissue) [500.057]. Even if the court is fairly certain that the persons
mentioned in an application are dead the application to court should be made by those who would most likely be the ones to
hear from them if alive: Re Mehah binti Muhamed [1972] 1 MLJ 212. The presumption arises even though he may have
good reason to conceal himself: Wills v Palmer (1904) 53 WR 169. There is, however, no presumption as to the exact time
within those seven years at which he died: Lal Chand Marwari v Mahant Ramrup Gir (1925) 42 TLR 159. There is also no
presumption that he died without leaving issue: Re Jackson, Jackson v Ward [1907] 2 Ch 354. Both of these matters must
be proved by sufficient positive or negative evidence. In Re Benjamin, Neville v Benjamin [1902] 1 Ch 723, leave was given,
in the absence of any evidence that a named person (who was last heard of unmarried on 1 September 1892) survived the
testator (who died on 25 June 1893), to divide the testator's residuary estate on the footing that that person predeceased the
testator without leaving issue. See also Neoh Ah Yan v Ong Leng Choo [2008] 7 MLJ 151 (RHC O 80 r 2(3)(e) (repealed))
was inapplicable as the present case was essentially about the plaintiff's application to be joined as an administrator with the
existing co-administrators for the grant of letters of administration as provided under O 72 r 1(2) (repealed) (now RC O 72 r
1(2))).
[330.673]
Jurisdiction of the court
In any administration action1, or action brought to determine a question without administration2, the court
may make any certificate or order and grant any relief to which the plaintiff may be entitled by reason of
Page 495
any breach of trust, wilful default3 or the misconduct of the defendant, notwithstanding that the action has
been begun by originating summons4.
2 See RC O 80 r 2 and [330.672]. See also Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457; Sok-Chun Tang v
Vincent Tang Fook Lam [1999] 2 MLJ 274.
3 See Re Tan Tye (decd), Tan Lian Chye v Estate & Trust Agencies (1927) Ltd [1963] MLJ 373.
4 RC O 80 r 4. This provision is expressed to be without prejudice to the power of the court to make an order under O 28 r 8
that the proceedings continue as if commenced by writ. As to proceedings which must be begun by writ of summons see
CIVIL PROCEDURE (2014 Reissue) [190.2-004].
Page 496
Questions by the Court/ C. Parties
C. PARTIES
[330.674]
Who may institute proceedings
Administration actions1 and proceedings for the determination of questions without administration2 may be
instituted by the personal representatives3, the creditors4 or the beneficiaries5. In the case where the
action for administration is brought by any one beneficiary (whether claiming under a will or an intestacy6)
or creditor, the normal practice is to name only the personal representatives as defendants7.
2 See [330.672].
3 See RC O 80 r 3(1). As to personal representatives see [330.242] and following.
4 See [330.419].
5 See RC O 80 r 5(2).
7 See the Atkin's Court Forms Malaysia Civil Proceedings: Administration of Estates I [24].
[330.675]
Parties
The general rule in administration actions1 and proceedings for the determination of questions without
administration2 is that all the executors3 who have proved, or intermeddled4 with the estate or all the
administrators5, must be parties either as plaintiffs or defendants6. Where the action is brought by
executors, administrators or trustees7, any of them who does not consent to being joined as a plaintiff
must be made a defendant8.
It is not necessary to make all the persons beneficially interested in the estate parties; the plaintiff may
make such one or more of the beneficiaries parties as, having regard to the nature of the relief or remedy
claimed in the action, he thinks fit9.
Subject to the rule that the court need not make an administration order which it does not consider
necessary10, it is not necessary11 for all persons having a beneficial interest in or claim against the estate
to be parties to the action, but the plaintiff may make such of those persons parties as he thinks fit having
regard to the nature of the relief claimed12. Where a claim is made against the estate by a person not a
party to the action only the personal representatives13 are entitled to appear in the proceedings without
leave of the court, but the court may direct or allow any other party to appear in addition to or in
substitution for the personal representatives on such terms as to costs or otherwise as it thinks fit14.
At any stage of the proceedings the court may, on such terms as it thinks just, and either of its own motion
or upon application, order any person unnecessarily joined as a party to cease to be a party15.
Page 497
2 See [330.672].
4 See [330.269] and following. An executor who has intermeddled with the estate, including an executor de son tort, may be
sued before probate is actually granted: see Re Lovett, Ambler v Lindsay (1876) 3 Ch D 198.
6 RC O 80 r 3(1). See Chor Phaik Har v Choong Lye Hock Estates Sdn Bhd [1996] 2 MLJ 206, CA , where the personal
representatives of the deceased, by their conduct, that the deceased had an interest in the lands in question made them
necessary parties to the action.
7 As to trusteeship see [330.538], [330.656].
8 RC O 80 r 3(1).
9 RC O 80 r 3(2).
10 See RC O 80 r 5(1).
11 Ie notwithstanding the rule that any person who is entitled jointly with the plaintiff but does not consent to being joined as
plaintiff must be made a defendant: see RC O 15 r 4(2). This paragraph does not apply to a probate action.
12 RC O 80 r 3(2).
14 RC O 80 r 3(3).
15 RC O 15 r 6(2)(a).
[330.676]
Creditor's action
A creditor1 may sue either on his own behalf or on behalf of himself and all the other creditors of the
deceased2. If he sues on behalf of himself and all the other creditors of the estate, this fact ought to
appear in the title of the actions. It is a statutory requirement that a statement of the representative
capacity in which the plaintiff sues must also be indorsed on the writ3 or originating summons4.
In a creditor's action, the personal representative5 completely represents the estate6, although the court
has power to add or require to be added any other person as a defendant7.
1 See [330.419].
2 As to representative proceedings see CIVIL PROCEDURE (2014 Reissue) [190.3-019] and following.
3 Cf RHC O 6 r 3(1)(a) (repealed). As to proceedings which must be begun by writ of summons see CIVIL PROCEDURE (2014
Reissue) [190.2-004].
4 RC O 7 r 3(2). See Loh Koon Moy v Zaibun [1978] 2 MLJ 29, FC , where the Federal Court held that failure to indorse the
representative character is an irregularity which can be cured. As to proceedings which may be begun by writ or originating
summons see CIVIL PROCEDURE (2014 Reissue) [190.2-005].
6 See RC O 15 r 14(1).
7 See RC O 15 r 6(2)(b); United Asian Bank Bhd v Personal Representative of Roshammah (decd) [1994] 3 MLJ 327 where
intervention must be applied for before the final order is made and a person is a proper party only if his presence before the
Page 498
court is imperative for the adjudication; Goh Liew Kee @ Goh Ah Nya v C Moosa bin Haji Abdullah [1993] 1 AMR 215,
where the creditor of the estate of the deceased applied for and obtained a grant of letters of administration to the estate of
the deceased without citing the widow and sole next of kin as a party.
[330.677]
Requirements for bringing action
To enable a person to maintain an administration action1 or an action to determine questions without

administration2, he must have an existing interest in the estate of the deceased3, or there must be an
existing debt4.
2 See [330.672].
3 See Ewe Keok Neoh v Ng Aun Thye [1934] MLJ 23, PC , where a beneficiary transferred the whole of his interest in the
estate to mortgagees.
4 See [330.676].
Page 499
Questions by the Court/ D. Consolidation and Transfer
D. CONSOLIDATION AND TRANSFER
[330.678]
Consolidation
Where two or more causes or matters are pending, then, if it appears to the court that:
(1) some common question of law or fact arises in both or all of them;
(2) the rights to relief claimed therein are in respect of or arise out of the same transaction or
series of transactions; or
(3) for some other reason it is desirable to make such an order,
the court may order those causes or matters to be consolidated on such terms as it thinks just or may
order them to be tried at the same time or one immediately after another or may order any of them to be
stayed until after the determination of any other of them1.
1 RC O 4 r 1(1). As to consolidation of proceedings see CIVIL PROCEDURE (2014 Reissue) [190.1-066] and following.
[330.679]
Transfer
Upon an order to consolidate1 being made by the court, the file of the cause or matter in which the
application is made is transferred to and added to the file of such other cause or matter, and the copy of
that order is left in place of the file so transferred, and a memorandum of the transfer is entered in the
cause book against the cause or matter so consolidated2.
1 As to consolidation see [330.678].
2 RC O 4 r 1(3); see CIVIL PROCEDURE (2014 Reissue) [190.1-066].

Page 500
Questions by the Court/ E. The Judgment or Order
E. THE JUDGMENT OR ORDER
[330.680]
Discretion of the court to make order
A judgment or order for the administration of an estate need not be given or made unless in the opinion of
the court the questions at issue between the parties1 cannot properly be determined otherwise than under
such a judgment or order2.
1 As to the parties to an administration action see [330.675]. For the meaning of 'administration action' see [330.667] note 1.
2 RC O 80 r 5(1).
[330.681]
Order for accounts
Where an administration action1 is brought by a creditor2 of the deceased or by a person claiming to be

entitled under a will or an intestacy3, and the plaintiff alleges that the executors4 or administrators5 have
furnished no or insufficient accounts6, the court may, without prejudice to its other powers, order that
proceedings in the action be stayed for a period specified in that order and that the personal
representatives7 within that period furnish the plaintiff with proper accounts8; and may, if necessary to
prevent proceedings by other creditors or claimants, give judgment or make an order for the administration
of the estate, and include in it an order that no proceedings are to be taken under the judgment or order,
or under any particular account or inquiry directed, without leave of the judge in person9.
2 See [330.419]. As to actions by creditors see [330.676].
6 See Chan Mui Eng v Chua Chu Huwe [1994] 1 SLR 375.
8 RC O 80 r 5(2)(a); see Atkin's Court Forms Malaysia Civil Proceedings: Administration of Estates Form 118 (I [1265]). See
also Pek Nam Kee v Peh Lam Kong [1996] 1 SLR 75, where the deed of family arrangement drawn up by the administrator
was set aside as the failure of the administrator to draw up proper accounts constituted material non-disclosures. Personal
representatives are bound to furnish proper accounts when called upon to do so: see Re Dartnall, Sawyer v Goddard [1895]
1 Ch 474, [1895-9] All ER Rep 890. However, the beneficiary must guarantee any expenses incurred in furnishing them: see
Re Bosworth, Martin v Lamb (1889) 58 LJ Ch 432. If the accounts are only rendered necessary by the attitude taken up by
the personal representatives they may be ordered to pay the expenses: see Re Skinner, Cooper v Skinner [1904] 1 Ch 289.
9 RC O 80 r 5(2)(b).
Page 501
[330.682]
Conduct of sale of trust property
Where in an administration action1 an order2 is made for the sale of any property vested in executors3,
administrators4 or trustees5, those executors, administrators or trustees, as the case may be, have the
conduct of the sale unless the court otherwise directs6.
2 As to the court's discretion to make an order see [330.680].
6 RC O 80 r 6.
[330.683]
Order for account on footing of wilful default
Where wilful default is alleged against the personal representative1, it is sufficient to establish one
instance of wilful default in order to entitle the plaintiff to an account2. However, where there is no
evidence of wilful default, interest3 is not chargeable unless it is shown that the moneys are actually in the
hands of the executor4.
2 Shaik Pareetho v Ebramsah (1889) 4 Ky 491, CA , where the plaintiff, one of the next-of-kin of the deceased, sued the
defendant executor and it was held that the plaintiff was entitled to have the accounts taken and a proportion of the profits of
the partnership credited to the estate of the deceased and not merely to interest on the sum stated in the account; Ghows
Khan v Uteh Zabaidah (1936) 2 MC 131 where the trustee's conduct in neglecting to sell the rubber produced from
plantations belonging to the testator's estate, within a reasonable time, amounted to wilful default. As to order for accounts
see [330.681].
3 See [330.688].
4 Re Wan Ahmad Nasir bin Ngah Ibrahim (decd) [1935] MLJ 160.
[330.684]
Falsified account
A co-trustee1 cannot be allowed to falsify accounts filed on the footing of wilful default2 for the purpose of
setting up the adverse title of a third party against his own beneficiaries for whom he was an express
trustee3.
2 See [330.683].
3 Daisy Aroozoo (f) v Amelia Aroozoo [1937] MLJ 255.

Page 502
[330.685]
Limitation of liability
A personal representative1 who is entitled to set up as a defence2, the Limitation Act 19533, must do so at
the time the order for accounts4 is made, so that the order can be qualified by reference to the said Act.
2 See Juman Khan v Registrar, Supreme Court, Johore (1931) 1 JLR 52, where the defendant personal representative
pleaded, inter alia, limitation against the plaintiff's claim for an account of moneys received by the deceased as agent of the
plaintiff in managing the plaintiff's rubber estate. See generally the Limitation Act 1953 (Act 254); Limitation Ordinance
(Sabah) (Cap 72) and the Limitation Ordinance (Sarawak) (Cap 49). See also Chan Mui Eng v Chua Chu Huwe [1994] 1
SLR 375 where the court dismissed the plaintiffs' claim on the basis the statutory period of limitation had irretrievably
expired.
3 As to pleading the Limitation Act 1953 as a defence see RC O 18 r 8(1).
4 As to the order for accounts see [330.681].
[330.686]
Order to lodge money in Court
Before an order requiring the payment into court of money held by a person in his capacity as personal
representative1 can be made, there must be a clear admission by the personal representatives that the
money is actually in their hands; it is not sufficient that the money has been in their hands2.
1 See RC O 80 r 2(3)(b) and [330.672]. As to personal representatives see [330.242] and following.
2 Palaniappa Chitty v Ravena Mana Maiyammai Achi [1948] MLJ 150, CA (Sing) .
[330.687]
Interest on debts
Where an account of the debts of deceased person is directed by a judgment1, then, unless the
deceased's estate is insolvent, or the court otherwise orders, interest is allowed on any debt which carries
interest at the rate it carries2; and on any other debt at such rate as the Chief Judge may from time to time
direct from the date of the judgment3.
A creditor4 who has established his debt in proceedings under the judgment and whose debt does not
carry interest is entitled to interest on his debt at such rate as the Chief Justice may from time to time
direct from the date of the judgment out of any assets which may remain after satisfying the costs of the
cause or matter, the debts which have been established and the interest on such of those debts as by law
carry interest5.
1 As to the court's discretion to make judgment see [330.680].

Page 503
2 RC O 44 r 18(1)(a).
3 RC O 44 r 18(1)(b).
4 See [330.419].
5 RC O 44 r 18(2).
[330.688]
Interest on legacies
Where an account of legacies1 is directed by any judgment2, then, subject to any directions contained in
the will or codicil in question and to any order made by the court, interest is allowed on each legacy at
such rate as the Chief Justice may from time to time direct beginning at the expiration of one year after the
testator's death3.
3 RC O 44 r 19.
Page 504
Questions by the Court/ F. Proceedings under Judgments
F. PROCEEDINGS UNDER JUDGMENTS
[330.689]
Notice of application to proceed
The party1 entitled to prosecute the judgment must take out a notice of application to proceed under the
judgment2. On this appplication the court gives directions including, in particular, directions as to the
manner in which any account3 or inquiry is to be prosecuted, the evidence to be adduced and the parties
required to attend4. Time limits may be set within which each proceeding is to be taken5. The court may
also at this or any later stage require parties constituting any class to be represented by the same solicitor,
and where the parties cannot agree on the solicitor to represent them, the court may nominate a solicitor
to represent them in the proceedings6.
1 As to the parties to an administration action see [330.675]. For the meaning of 'administration action' see [330.667] note 1.
2 RC O 44 r 2(3). As to the court's discretion to make judgment see [330.680]. As to proceedings under judgments see CIVIL
3 As to order for accounts see [330.681].
4 RC O 44 r 4(1)(a)-(c).
5 RC O 44 r 4(1)(d).
6 RC O 44 r 5. The court may require the parties to be represented by different solicitors: see O 44 r 6.
[330.690]
Notice of judgment
Where in an administration action1 the court gives a judgment2 or makes a direction3 affecting the rights
or interests of persons who are not parties4, it may, when giving the judgment or at any stage of the
proceedings under the judgment, direct notice of the judgment to be served on any person interested in
the estate, and any person duly served with such notice will be bound by the judgment to the same extent
as he would have been if he had originally been made a party to the action5, unless he applies without
entering appearance within one month after such service to discharge, vary or add to the judgment6. He
may also, after entering an appearance, attend the proceedings under the judgment7. The notice must be
indorsed with a memorandum and served in the manner directed by the court8.
3 See [330.689].
4 As to the parties to an administration action see [330.675].
5 RC O 44 r 3(1)(a).
6 RC O 44 r 3(5).
Page 505
7 RC O 44 r 3(6).
8 RC O 44 r 3(2). The court may dispense with service if it is impracticable: O 44 r 3(2). In this case the person concerned is
bound if he had been served with the notice except where the judgment has been obtained by fraud or non-disclosure of
material facts: O 44 r 3(4).
[330.691]
Rules in proceedings for administration
The procedure for ascertaining claims under an order for general administration under the court's
discretion1 is governed by special rules2. These apply where in proceedings for the administration under
the court's direction of the estate of a deceased person the judgment directs any account of debts or other
liabilities of the deceased person to be taken or any inquiry for next of kin or other unascertained
claimants to be made3; and where in proceedings for the execution under the court's direction of a trust
the judgment directs any such inquiry to be made4. These rules also apply, with the necessary
modifications, where in any other proceedings the judgment directs any account of debts or other liabilities
to be taken or any inquiry to be made5.
1 See [330.680].
2 Ie RC O 44 rr 10-17.
3 RC O 44 r 9(a).
4 RC O 44 r 9(b).
5 RC O 44 r 9.
[330.692]
Advertisement for claims
On the hearing of the application to proceed1 the court may direct the issue of advertisements for
creditors2 or other claimants, and in deciding whether to do so must have regard to any advertisement3
previously issued by the personal representatives4 or trustees5 concerned6. Every advertisement must be
prepared by the party prosecuting the judgment, and in the case of an advertisement for creditors, it must
be signed by that party's solicitor or, if he has no solicitor, by the Registrar7; and in the case of an
advertisement for other claimants, it must be submitted to the Registrar and, if approved by him, must be
signed by him8.
The court fixes the time within which, and the person to whom any claimant is to send his name and
address and particulars of his claim, and that time and the name and address of that person must be
stated in the advertisement9.
1 See [330.689].
2 As to creditors see [330.419].
3 See [330.507], [330.508].
5 See [330.538], [330.656].

Page 506
6 RC O 44 r 10(1).
7 RC O 44 r 10(2)(a).
8 RC O 44 r 10(2)(b).
9 RC O 44 r 10(3).
[330.693]
Failure to claim
A claimant who fails to send full particulars of his claim to the person named in any advertisement1
directed by the court within the time specified in the advertisement is not entitled to prove his claim except
with leave, and in granting leave the court may impose such terms as to costs and otherwise as it thinks
just2.
1 See [330.692].
2 RC O 44 r 11.
[330.694]
Examination of claims
Where an account of debts or other liabilities of the estate has been directed1, such party as the court may
direct must examine the claims of persons claiming to be creditors2 and determine, so far as he is able, to
which of such claims the estate is liable3. He must then, at least seven clear days before the time
appointed for adjudication on claims4, make an affidavit5 verifying lists of:
(1) claims sent in pursuance of any advertisement6;

(2) claims received by any of the personal representatives otherwise than in pursuance of an
advertisement7; and
(3) debts known to any of the personal representatives which are or may still be due as debts of
the deceased at the time of his death but in respect of which no claim has been received8.
Similar provisions apply to claims to beneficial interests in the estate. Where an inquiry for next of kin or
other unascertained claimants has been directed, such party as the court may direct must examine the
claims and determine, so far as he is able, which of them are valid claims9, and must then, at least seven
clear days before the time appointed for adjudicating on claims, make an affidavit verifying lists of (a)
claims sent in pursuance of any advertisements10; and (b) claims received by any of the personal
representatives or trustees11 concerned, otherwise than in pursuance of an advertisement, or which have
come to his knowledge12.
1 See [330.689].
3 RC O 44 r 12(1)(a).
4 As to adjudication on claims see [330.696].
5 As to affidavits verifying claims see [330.695].

Page 507
6 RC O 44 r 12(1)(b)(i). As to advertisements for claims see [330.692].
7 RC O 44 r 12(1)(b)(ii). As to personal representatives see [330.242] and following.
8 RC O 44 r 12(1)(b)(iii). As to the duty to pay debts see [330.509].
9 RC O 44 r 12(2)(a).
10 RC O 44 r 12(2)(b)(i).
12 RC O 44 r 12(2)(b)(ii).
[330.695]
Affidavit verifying claims
The verifying affidavit1 must, as the circumstances require, specify, in relation to the claims of creditors2,
the claims and debts which in the deponent's belief are liabilities of the deceased's estate and ought to be
allowed, in whole or in part, and, in relation to the claims of persons other than creditors, the claims which
in the deponent's belief are valid claims, with, in either case, the reasons for such belief3. If the personal
representatives4 or trustees5 concerned are not the parties directed by the court to examine claims, they
must join with the party directed to examine them in making the affidavit6.
1 Ie required by RC O 44 r 12(1), (2): see [330.694].
3 RC O 44 r 12(3).
6 RC O 44 r 12(4). If they disagree, they will have to swear separate affidavits. As to examination of claims see [330.694].
[330.696]
Adjudication on claims
When adjudicating on claims1 the court may: (1) allow any claim after or without proof of it2; (2) direct any
claim to be investigated in such manner as it thinks fit3; or (3) require any claimant to attend and prove his
claim or to furnish further particulars or evidence of it4, in which case such party as the court may direct
must serve on that claimant a notice5 requiring him:
(a) to file an affidavit supporting his claim within such time, not being less than seven days after
service of the notice, as may be specified in the notice and to attend before the court for
adjudication on the claim at such time as may be so specified6; or
(b) to produce to the court at such time as may be so specified such documents in support of his
claim as may be so specified or described7.
The claim of a claimant who fails to comply with such a notice may be disallowed8.
1 'Claim' includes part of a claim: RC O 44 r 13(7).

Page 508
2 RC O 44 r 13(1)(a).
3 RC O 44 r 13(1)(b).
4 RC O 44 r 13(1)(c).
5 RC O 44 r 13(5). If the court so requires, a person claiming to be a secured creditor must produce his security to the
Registrar: O 44 r 13(6).
6 RC O 44 r 13(2)(a). A claimant who files an affidavit must serve notice of the filing on the party who served him the notice
and, unless the court otherwise directs, that party must produce an office copy of the affidavit at the adjudication of the
claim: O 44 r 13(4).
7 RC O 44 r 13(2)(b).
8 RC O 44 r 13(3).
[330.697]
Notice of creditors' claims allowed or disallowed
Such party as the court may direct must serve on every creditor1 whose claim or any part of the claim has
been allowed or disallowed2 and who did not attend when the claim was disposed of, a notice informing
him of that fact3.
The party so directed by the court must make out lists of creditors' claims and other claims allowed and
file them at the Registry4.
3 RC O 44 r 16(1).
4 RC O 44 r 16(2).
[330.698]
Adjournment of adjudication and partial distribution
Where on the day appointed for adjudication of claims1 any claim is not then disposed of, the adjudication
must be adjourned to a day appointed by the court, and the court may fix the time within which any
evidence supporting or opposing the claim is to be filed2.
Where some of the persons entitled to share in a fund are ascertained, and difficulty or delay has occurred
or is likely to occur in ascertaining the other persons entitled, the court may order or allow immediate
payment of their shares to the person ascertained without reserving any part of those shares to meet the
subsequent costs of ascertaining those other persons3.
2 RC O 44 r 14.
3 RC O 43 r 8.
Page 509
[330.699]
Notice of judgment on claims to beneficial interest in the estate
Where a claimant other than a creditor1 has established his claim, then, unless he is a party to the cause
or matter or has previously been served with notice of the judgment2 or the court otherwise directs, the
party having the conduct of the case or matter must serve notice of the judgment on him3. The person
served is bound4 by the judgment to the same extent as he would have been if he had originally been
made a party to the action5.
Where the court directs that notice of a judgment need not be served on a person, it may also order that
that person is to be bound by the judgment to the same extent as if he had been served, and he is bound
accordingly except where the judgment has been obtained by fraud or non-disclosure of material fact6.
2 As to notice of judgment see [330.690].
3 RC O 44 r 15(1). In relation to a person served with notice of a judgment under this provision O 44 r 3(5)-(7) applies as it
applies in relation to a person served under O 44 r 3 (which relates to service of notice of a judgment on a person not a
party: see [330.690]): O 44 r 15(4).
4 See RC O 44 r 3(5), which enables a person served to apply, within a month after service of the notice on him, and without
entering an appearance, to discharge, vary or add to the judgment.
5 RC O 44 r 15(2).
6 RC O 44 r 15(3).
[330.700]
Kin inquiries: generally
Among the inquiries which may be undertaken are inquiries as to relationships, generally called kin
inquiries, which may arise both on intestacy1 and under the terms of a will. The court may, on application
by notice of application, at any stage of proceedings direct any necessary accounts or inquiries to be
taken or made2. In the course of inquiries the Registrar gives directions for searches, advertisements and
all other necessary investigations3.
2 RC O 43 r 2(1).
3 More often, however, because the relevant facts cannot be discovered, the registrar is unable to answer the inquiry
without qualification, but only on some hypothesis, or 'footing' (as it is called), for example, that a particular person
predeceased the intestate without leaving issue. In such cases the personal representatives are given leave to distribute
upon the footing that this hypothesis is correct. Such an order, known as a 'Benjamin Order', fully protects the personal
representatives, but, if the hypothesis proves to be incorrect, the persons entitled are not prevented from recovering the
payments made from the persons to whom they were made: see Re Benjamin, Neville v Benjamin [1902] 1 Ch 723.
[330.701]
Kin inquiries: parties

Page 510
The plaintiffs to proceedings for kin inquiries are usually the personal representatives1, but, where no
personal representative has been constituted or where the next-of-kin are not satisfied with the progress
of the administration out of court, the plaintiffs may be one or more of the next-of-kin.
The defendant is usually one or more of the next-of-kin. If the personal representatives are executors2 and
not themselves kin, and no other kin is known, Amanah Raya Berhad may be the defendant3.
Where some of the persons entitled to share in a fund are ascertained, and difficulty or delay has occurred
or is likely to occur in ascertaining the other person so entitled, the court may order or allow immediate
payment of their shares to the persons ascertained without reserving any part of those shares to meet the
subsequent costs of ascertaining those other persons4.
3 See RC O 15 r 6A(5A) and Selvarajah v Official Administrator [1978] 2 MLJ 108. As to the functions of the Amanah Raya
Berhad see [330.247].
4 RC O 43 r 8.
Page 511
Administration and Succession/(2) Executors and Administrators/(8) Costs in Administration Proceedings
(8) COSTS IN ADMINISTRATION PROCEEDINGS
[330.702]
Application of costs
Subject to the express provisions of any written law and the rules with respect to costs1, the costs2 of and
incidental to proceedings in the administration of estates and trusts, are in the discretion of the court, and the
court has full power to determine by whom3 and to what extent the costs are to be paid4, although the
general principle is that the estate must bear the expenses incidental to the proper performance of the duties
of the personal representatives as personal representatives5 or as attorneys of administrators6.
1 Ie RC O 59; see CIVIL PROCEDURE (2014 Reissue) [190.12-001] and following.
2 For the meaning of 'costs' see [330.394] note 2.
3 See Re Kavena Hadjee Mohamed Yoosuf (decd), Estate & Trust Agencies (1927) Ltd v Fatimah Sham binte Hadji Sahib
[1936] MLJ 78, where it was held that the cost of completing the six houses should fall on the estate; Ganapathy Chettiar v
Periakaruppan Chettiar [1962] MLJ 207, PC , where the Privy Council held that the administrator was not required to pay costs
personally but should be given liberty to apply for his costs out of the estate as proper expenses in the administration of the
estate; Amarjit Singh Sidhu v Tan Siew Eng [1988] 3 MLJ 227 where the court would no doubt sanction the expenditure of the
executors and trustees.
4 RC O 59 r 2(2). See Wee Nga Neo v Yeo Kian Guan (1889) 4 Ky 558.
6 Ananda v Felixia Varnakulasinghe [1977] 2 MLJ 254, FC , where the Federal Court held that the order of costs personally
against the attorney of the administrator could not possibly stand. As to administrators see [330.245].
[330.703]
Restriction of discretion to order costs
Notwithstanding anything in the rules relating to costs1 or under any written law, unless the court is of opinion
that there was no reasonable ground for opposing the will, no order may be made for the costs of the other
side to be paid by the party opposing the will in a probate action2 who has given notice with his defence to
the party setting up the will that he merely insists upon the will being proved in solemn form3 of law and only
intends to cross-examine the witnesses produced in support of the will4.
Where a person is or has been a party to any proceedings in the capacity of trustee5, personal
representative6 or mortgagee, he is, unless the court otherwise orders, entitled to the costs of those
proceedings, in so far as they are not recovered from or paid by any other person, out of the fund7 held by
the trustee or personal representative or the mortgaged property, as the case may be, and the court may
otherwise order only on the ground that the trustee, personal representative or mortgagee has acted
unreasonably8 or, in the case of a trustee or personal representative, has in substance acted for his own
benefit rather than for the benefit of the fund9.
1 Ie RC O 59; see CIVIL PROCEDURE (2014 Reissue) [190.12-001] and following. For the meaning of 'costs' see [330.394] note 2.
3 See [330.364].
Page 512
4 RC O 59 r 9(1).
7 See [330.396] note 3.
8 See Re Wan Ahmad Nasir bin Ngah Ibrahim (decd) [1935] MLJ 160.
9 RC O 59 r 9(2).
[330.704]
Costs payable to trustee out of trust fund
In the case of taxation of costs1, a trustee2 or personal representative3 is entitled to be paid out of any fund4
which he holds in that capacity5. No costs6 will be disallowed except in so far as those costs or any part of
their amount should not, in accordance with the duty of the trustee or personal representative as such, have
been incurred or paid, and should for that reason be borne by him personally7 and where costs of
unnecessary proceedings have been occasioned by the trustee's own gross negligence in the discharge of
his fiduciary duties8. However, the court has the power to charge costs on trust fund when a trustee has not
acted improperly9.
1 As to taxation of costs see [330.395]. As to costs generally see CIVIL PROCEDURE (2014 Reissue) [190.12-001] and following.
4 See [330.396] note 3.
5 RC O 59 r 18(1).
7 RC O 59 r 18(2). As to when personal representatives are liable for costs see [330.706].
8 See Re H Somapah (decd) [1950] MLJ 247.
9 See the Trustee Act 1949 (Act 208) s 62.
[330.705]
Creditors' costs
The costs1 of a creditor2 in establishing his debt will be allowed if he is successful3 unless the court
otherwise directs4. The court must fix the sum allowed, unless it thinks fit to direct taxation5, and the costs
are added to the debt so established6. The court may disallow costs unnecessarily or improperly incurred by
a claimant7, and if a creditor's claim or any part of it fails, the creditor may be ordered to pay the costs of any
person incurred in opposing it8.
4 RC O 59 r 3.
Page 513
5 As to taxation of costs see [330.395]. As to costs generally see CIVIL PROCEDURE (2014 Reissue) [190.12-001] and following.
6 RC O 59 r 3.
7 RC O 59 r 5.
8 RC O 59 r 3.
[330.706]
When personal representative is liable for costs
Personal representatives1 or trustees2 are entitled to their costs out of the estate as a matter of course if they
can fairly account for them and the costs are part of the general indemnity to which they are entitled3. If a
trustee is guilty of misconduct either in the administration of the trust, or where the trustee has been guilty of
corrupt or fraudulent conduct, it is the invariable practice of the court to order the trustee to pay the costs
personally4.
Personal representatives and administrators de bonis non5 who, before bringing or defending an action, fail
to obtain consent of all the beneficiaries or seek directions of the court, will be liable to pay the costs of the
action which was conspicuously unmaintainable6.
3 As to personal representatives' remuneration see [330.282] and following. See also [330.555].
4 Tan Soo Lock v Tan Jiak Choo [1935] MLJ 202.
5 See [330.435].
6 Goh Cheng Teik v Syarikat Goh Guan Ho [1997] 4 MLJ 403; Re Beddoe, Downes v Cottam [1893] 1 Ch 547, CA (Eng)
(personal representatives will not be allowed the costs of an action defended by them out of the estate of their testator or
intestate in taking their accounts unless it was proper to defend it).
Page 514
Administration and Succession/(2) Executors and Administrators/(9) Personal Representatives' Liabilities/ A.
Liability for Deceased's Obligations
(9) PERSONAL REPRESENTATIVES' LIABILITIES

A. LIABILITY FOR DECEASED'S OBLIGATIONS
[330.707]
General rule
A personal representative1, when he takes charge of the affairs of the deceased, is obliged to carry out
whatever contracts the deceased was a party to2 and will be answerable for any breaches that may be
committed by the failure to comply with the requirements of the contract, except those with a personal
element which would have been brought to an end upon the death of either the deceased or the other
party who entered into the contract with the deceased3. Where a contract is founded on personal
considerations, the death of either party before breach of the contract puts an end to the relationship.
Where a personal representative carries on the contract of the deceased, the doctrine of relation back4
applies, and all acts that he performed would be validated upon his obtaining the grant of letters of
representation5.
1 As to personal representatives see [330.242] and following. An executor who has intermeddled with the estate, including
an executor de son tort, may be sued before probate is actually granted Re Lovett, Ambler v Lindsay (1876) 3 Ch D 198,
and a person who claims to be administrator may be sued before letters of administration are granted Loudon v Ryder (No
2) [1953] Ch 423, [1953] 1 All ER 1005.
2 See Ahmed Angullia; bin Hajee Mohamed; Salleh Angullia v Estate and Trust Agencies (1927) Ltd [1938] MLJ 185, PC .
3 Re Haji Mohamed Eusoff (decd) [1981] 2 MLJ 77, FC , where the Federal Court did not grant leave to the appellant as
executrix of her late husband's estate against the receiver of another estate for specific performance of an alleged
agreement based on an offer to sell land belonging to the estate by the receiver and the administrators to the appellant's
deceased husband and accepted by him.
4 See [330.266].
5 See Mohamed Hanif v Chin Ah Bah [1974] 1 MLJ 128, where the extraction of the grant of letters of administration could
not be related back to the issue of the writ even if the administrators extracted the grant a short time after the writ was
issued; cf Mohamed Ibrahim v Lim Tuan Hong [1960] MLJ 180, where the doctrine of relation back could be applied only to
protect an estate from wrongful injury occurring in the interval between the death of an intestate and the grant of letters of
administration and could not be applied so as to invalidate interests lawfully acquired in the interval or so as to give the
administrator a title to something which had been extinguished in the interval without fault on the part of anyone.
[330.708]
Conveyance of land contracted to be sold
The personal representatives1 of a person at whose death there is a purchaser2 who in good faith
acquires an interest in the deceased's property for valuable consideration3, has the power and is bound to
complete the transaction of the property with the purchaser4. If, however, the agreement is a conditional
contract5 and unenforceable until the permission of the court has been obtained6, then specific
performance7 could not be decreed to compel the beneficiaries as third parties to grant the necessary
consent8 as the beneficiaries are not parties to that contract or where the sale was subject to the
Page 515
administrators9 obtaining leave of the court to sell and transfer the land which sale the beneficiaries
opposed on the grounds, inter alia, that the agreed purchase price was grossly below the market value10.
A purchaser has a better bargaining power to enforce the contract by way of specific performance if the
administrator refuses to proceed with the sale which is subsequently approved by the court as there is no
statutory provision11 to require the consent of the beneficiaries12, but only the approval of the court if a
transfer of land is to be made13.
A beneficiary cannot covenant to convey land comprised in the deceased's estate pending
administration14 and distribution15 of the estate16.
2 See [330.307] note 2.
3 See note 2 above.
4 Ahmed Angullia; bin Hajee Mohamed; Salleh Angullia v Estate and Trust Agencies (1927) Ltd [1938] MLJ 185, PC ; Haji
Osman bin Abu Bakar v Saiyed Noor bin Saiyed Mohamed [1952] MLJ 37, CA , where a personal representative is held to
be bound to honour any contract entered into by the deceased prior to his death. As to the power of sale see [330.540] and
following.
5 Che Ah and Che Yang Kelsom v Che Ahmad [1941] MLJ 126, CA , where preference was given to the beneficiary in a
conditional contract notwithstanding that at the time the offer for sale was made the price was a reasonable one; Gan Hong
Hoe v Aziz Beg [1954] MLJ 202; Cheng Kwee Siong v Cheng Kwee [1997] 1 SLR 593 where the consent of all the
beneficiaries was a condition to the payment of commission to one of the beneficiaries who was in occupation of the subject
property for sale. These cases all point to the trend that an administrator should seek the consent of all the beneficiaries
before entering into a contract for the sale of the deceased's property.
6 Re Tunku Mohamed Jewa Ibni Almarhum Sultan Abdul Hamid (decd) [1982] 2 MLJ 44, where the court ordered the land to
be sold by way of tender to the highest bidder in order to obtain the best price possible.
7 See [330.709].
8 Lim Liang Kee v Goh Bee Hwa Mabel [1997] 5 MLJ 128, [1998] 4 CLJ 127.
10 Yap Yoke Luan v Ong Wee Tok [1984] 1 MLJ 23 at 25, FC, per Syed Agil Barakbah FJ , where it was held that the
administrators should have applied the common-sense rule of calling for a valuation report in considering whether the
conditional sale was favourable to the beneficiaries and whether the administrators had acted with proper prudence in
exercising their overriding duty to obtain the best possible price. See also Haji Aminah bte Bakri v Manisah bte Haji Bakri
[1989] 1 MLJ 350; Khoo Cheng v Gan Hong Yock [2005] 3 MLJ 614, [2005] 2 CLJ 85, CA .
11 The Probate and Administration Act 1959 (Act 97) ss 60, 71 clearly states that when an administrator of an estate takes
action without getting the approval of the court, the said action or any agreement made does not become null and void on
the application of any party who has an interest in the matter: Chee Hock Lai v Tan Swee Thai [1990] 3 MLJ 477 where the
consent of the beneficiaries was not necessary as no one has taken any steps to vitiate the said agreement.
12 Lim Cheng Kwang v Sivamalai d/o Sinnathambi [1994] 2 CLJ 59, where the transfer and registration of the estate
property was premature and void for want of legal rights because no notice was given to and consent obtained from all the
beneficiaries.
13 Itam binti Saad v Chik binti Abdullah [1974] 2 MLJ 53. See also Ong Ah Moy v Nga Ah Fan [1978] 1 MLJ 177, FC , where
the Federal Court held that the appellant who intervened on the contention she was the lawful daughter of the deceased
should be allowed to commence an action, inter alia, for the determination of her status.
14 As to the administration of assets see [330.498] and following.
16 Silimuthu v Amalu [1983] 1 MLJ 190; Chor Phaik Har v Farlim Properties Sdn Bhd [1997] 3 MLJ 188, FC .
[330.709]
Page 516
Specific performance
Specific performance1 on contracts entered into by a testator prior to his death may be granted against
executors2 who on the date of decree had not obtained the grant of probate3. However, where an
agreement is an agreement to sell subject to obtaining sanction of the court, then the only relief that the
court is likely to grant is an order for damages4 for failure on the part of the administrator5 to obtain such
sanction6.
1 As to contracts which cannot be specifically enforced see the Specific Relief Act 1959 (Act 137) ss 20, 27.
3 Haji Osman bin Abu Bakar v Saiyed Noor bin Saiyed Mohamed [1952] MLJ 37, CA , where the deceased executed a
contract for the transfer of land to a purchaser but died before the transfer was registered, it was held that the death of the
deceased owner did not avoid the contract as the personal representative could be compelled to perform the contract;
Venkatachalam Chettiar v Arunasalam Chettiar [1953] MLJ 234; Lim Siew Leong v Vallipuram [1973] 1 MLJ 241, FC ;
Silimuthu v Amalu [1983] 1 MLJ 190 where it was held that the sale agreement entered into by the beneficiaries of the estate
of the deceased with the plaintiff was valid and that the plaintiff was entitled to the order requiring the defendants to apply for
letters of administration within one month of the judgment and within one month of the grant being extracted to apply for
leave to have the land transferred to the plaintiff.
4 Liao Ng v Koh Vun [1911] JR Innes 142, SC ; Tan Hiow v Lee Boon Chia (1958) 3 MC 173; Ho Ah Kim v Paya Trubong
Estate Sdn Bhd [1987] 1 MLJ 143; Lim Liang Kee v Goh Bee Hwa Mabel [1997] 5 MLJ 128, [1998] 4 CLJ 127.
6 See the Probate and Administration Act 1959 (Act 97) s 60(4) and [330.540]. See also Haji Saud v Haji Ahmad [1957] MLJ
50, CA ; Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will annexed, of the Estate of K AL
RM Karuppan Chettiar, decd) [1998] 2 MLJ 90; Re Lua Kin Suai [1998] 7 MLJ 258; Soon Seng Company Sdn Bhd v Toko
Palayakat Jamal (M) Sdn Bhd [1999] 6 CLJ 397.
[330.710]
Tax liabilities
Any income accruing to the estate of a deceased during the administration period1 is strictly assessable in
the name of the personal representative2, as the beneficiaries do not have any definite interest in the
estate until the residue of the estate has been defined at the end of the administration period. The
personal representative must not make a distribution3 out of the estate unless adequate provision has
been made for full payment of any tax4 and in default, the personal representative is liable to a penalty
equal to the amount of tax payable5.
1 'Administration period' is described as the period starting on the date of death and ending on the date when the executor is
in a position to define the residue of the estate for distribution to the beneficiaries: see Chin Yoong Kheong Malaysian
Taxation (4th Edn, 1997) p 497. However, in Ketua Pengarah Hasil Dalam Negeri v Tan Sri Kishu T Jethanand [1998] 2 CLJ
Supp 264, CA , it was held that applying the principle of construing a taxing Act, in the absence of any mention of the term
'administration period', it would be improper for the court to infer the existence of any period of limitation of the administration
by the executor, so long as the assets still remain in the estate of the testator.
2 The Income Tax Act 1967 (Act 53) contains provisions on the persons chargeable to tax and their responsibilities: see ss
66, 67. There are also provisions as respects the responsibility of trustees: see s 73; and the responsibility of executors: see
s 74. For the purposes of the Income Tax Act 1967, 'executor' means any executor, administrator or other person
administering or managing the estate of a deceased person: s 2(1). See generally [480] REVENUE (2013 Reissue). As to
personal representatives see [330.242] and following.It was held in Kerajaan Malaysia v Yong Siew Choon [2006] 1 MLJ 1,
FC , that the person assessable and chargeable to tax in the case of the estate of a deceased person is his executor.
Proceedings can therefore be commenced against an executor for the recovery of tax due and payable. In its legal sense
the word 'executor' is a reference to a person who has obtained the grant of probate or of letters of administration of a
deceased person. Such a person has the capacity to sue or to be sued. Where the reference to 'executor' and 'administrator'
in the Income Tax Act 1967 (Act 53) s 2 being persons who are legally appointed, only means that the 'person administering
or managing the estate of a deceased person' is not one who is so appointed. The Act has therefore given an extended
meaning to the word 'executor' by including in s 2, a person administering or managing the estate of a deceased person. As
Page 517
the definition is clear and unambiguous it cannot be ignored. Any reference in the Income Tax Act 1967 to an 'executor'
must therefore be construed in the light of its definition in s 2. Such a statutory provision is not unusual. The Civil Law Act
1956 (Act 67) s 7(8) empowers the dependents of a deceased person to maintain a dependency claim even in the absence
of letters of administration in certain circumstances. The corollary is that RC O 15 r 6A will have no application to
proceedings under the Income Tax Act 1967 against such a person.
3 See Ketua Pengarah Hasil Dalam Negeri v Tan Sri Kishu T Jethanand [1998] 2 CLJ Supp 264, CA , where it was held that
the Income Tax Act 1967 s 64(1) clearly states that the income of the estate of a deceased individual is to be taxed as the
income of the estate and not as the income of the beneficiaries of the estate and that s 64(1) should be read in conjunction
with s 64(5) which states that payment by the executor to a beneficiary is not to be regarded for tax purposes. As to the
distribution of assets see [330.563] and following.
4 Income Tax Act 1967 s 74(5).
5 Income Tax Act 1967 s 74(6).
[330.711]
Real property gains tax
Real property gains tax1 is assessable on the personal representative2 who disposes3 of immovable
property4 of the estate of a deceased and where there is more than one personal representative, they will
be jointly and severally liable for the tax5.
A disposal of an asset is deemed to take place in the case:
(1) of a gift of an asset on death, on the date of transfer of ownership of the asset to the
recipient;
(2) where a legatee accepts an asset in place of a money legacy, on the date of transfer of
ownership of the asset of the legatee; and
(3) where an asset of a deceased person is transferred to a legatee by his executor6
(irrespective of whether he himself is the legatee or not) or by the trustee of a trust created
under his will, on the date of transfer of ownership of the asset of the legatee7.
Where an asset of a deceased person is disposed of (otherwise than to a legatee) by his executor or by
the trustee of a trust created under his will such executor or trustee is deemed to have acquired it on the
date of death of the deceased person8.
In the case of a gift of an asset on death; or where a legatee accepts an asset in place of a money legacy;
or where an asset of a deceased person is transferred to a legatee by his executor (irrespective of
whether he himself is the legatee or not) or by the trustee of a trust created under his will, there is deemed
to be an acquisition of the asset by the recipient or the legatee at an acquisition price equal to the market
value of the asset or legacy as at the date of transfer of ownership of the asset to the recipient or of the
legacy to the legatee9. Likewise, where an asset of a deceased person is disposed of (otherwise than to a
legatee) by his executors or the trustees of a trust created under his will, such executors or trustees are
deemed to have acquire it at an acquisition price equal to the market value of the asset as at the date of
the death of that deceased person10. If the asset was acquired by the disposer prior to 1 January 1970,
the market value of the asset as at 1 January 1970 is substituted for the amount of the legacy or the
market value of the asset as at the date of transfer of ownership of the asset, whichever is the lower11 less
the sums:
(a) received by way of compensation for any kind of damage or injury to the asset or for the
destruction or dissipation of the asset or for any depreciation or risk of depreciation of the
asset;
(b) received under a policy of insurance12 for any kind of damage or injury to or the loss,
destruction or depreciation of the asset; and
Page 518
(c) forfeited as a deposit made in connection with an intended transfer of the asset13.
The disposal price is deemed to be equal to the acquisition price where there is devolution of the assets of
a deceased person on his executor or legatee under a will or intestacy14 or on the trustees of a trust
created under his will15.
1 As to real property gains tax see REVENUE (2013 Reissue) [480.366] and following.
3 See the Real Property Gains Tax Act 1976 (Act 169) s 6, Sch 1 para 7.
4 The immovable property of a deceased's estate must first be transmitted to the personal representative before such
properties can be transferred out or sold to a third party: see the National Land Code (Act No 56 of 1965) s 346 and
[330.478]. Transmission is only a legal requirement under the National Land Code and it does not give rise to any change of
ownership in the said properties. Transmission cannot be construed as a disposal for purposes of real property gains tax.
Thus, when a personal representatives disposes of an immovable property belonging to a deceased's estate to a third
person, the date of acquisition should be the date on which that immovable property was acquired by the deceased: see the
Real Property Gains Tax Act 1976 s 7, Sch 2 para 28. In the interpretation of Sch 2 para 28, it must be ascertained that
there are beneficiaries entitled against the trust for if the trustees are the only beneficiaries, then there will be no
beneficiaries absolutely entitled against the trustees and as such Sch 2 para 28 will not apply.
5 Every person whether or not resident in Malaysia for a year of a assessment is chargeable with real property gains tax in
respect of a chargeable gain accruing to him in that year on the disposal of any chargeable asset: Real Property Gains Tax
Act 1976 s 6.
6 For the purposes of the Real Property Gains Tax Act 1976, 'executor' means the executor, administrator or other person
administering the estate of a deceased person: s 2(1). As to executors see [330.243], [330.244]; and as to administrators
see [330.245].
7 Real Property Gains Tax Act 1976 Sch 2 para 15A (as amended by the Finance Act 2012 (Act 755)).
8 Real Property Gains Tax Act 1976 Sch 2 para 15B.
9 Real Property Gains Tax Act 1976 Sch 2 para 19(1), (2), (3A).
10 Real Property Gains Tax Act 1976 Sch 2 para 19(3).
11 Real Property Gains Tax Act 1976 Sch 2 para 4(3).
12 See generally [490] INSURANCE (2011 Reissue).
13 Real Property Gains Tax Act 1976 Sch 2 para 4(1)(a), (b), (c).
15 Real Property Gains Tax Act 1976 Sch 2 para 3(a).
[330.712]
Estate duty
Estate duty1 is not payable in respect of all estates of persons who died on or after 1 November 19912,
but estate duty as required by statutory law as existing before the 1 November 1991, would apply to the
estate of any person who died before the coming into force of the repeal of the estate duty law as if the
repeal had not been made3.
1 As to the taxation of estates see REVENUE (2013 Reissue) [480.349] and following.
2 See the Probate and Administration Act 1959 (Act 97) s 54. The Estate Duty Enactment 1941 (FMS 7 of 1941); the Estate
Duty Ordinance of Sabah (FMS Cap 42); the Estate Duty Ordinance of Sarawak (Cap 29); the Finance (Estate Duty) Act
1965 (Act 29); the Finance (Estate Duty) Act 1971 (Act 38); the Finance (Estate Duty) Act 1979 (Act 219) and the Finance
Page 519
(Estate Duty) Act 1980 (Act 224) have been repealed with effect from 1 November 1991: Finance Act 1992 (Act 476) ss 45,
46(1).
3 Finance Act 1992 s 46(2).
[330.713]
Partnership debts
The estate of a deceased partner is severally liable in the due course of administration for the debts and
obligations of the partnership incurred while he was a partner, so far as they remain unsatisfied but
subject to the prior payments of his separate debts1.
1 Partnership Act 1961 (Act 135) s 11. See generally PARTNERSHIPS (2011 Reissue) [160.010].
[330.714]
Wrongful acts of co-partner
Where a firm becomes liable for the wrongful acts or omissions of a partner, or for the misapplication of
money or property of a third person, every partner is liable both jointly and severally1. Where the wrongful
act is committed after the death of a partner, no liability is imposed upon his estate2.
1 Partnership Act 1961 (Act 135) ss 12-14. See generally PARTNERSHIPS (2011 Reissue) [160.011]-[160.013].
2 See [330.715].
[330.715]
Partnership debts contracted after death
The estate of a deceased partner is not liable for partnership debts contracted after his death1, nor for the
continued use of the old firm's name2, or of the deceased partner's name as part of the firm, to impose
liability upon his representative or estate for such debts3.
1 As to the dissolution of partnership by death see the Partnership Act 1961 (Act 135) s 35(1). See generally PARTNERSHIPS
(2011 Reissue) [160.032].
2 See Chia Foon Tau (suing as executor of the estate of Chong Tzu Chieh (decd)) v Lim Pey Lin [1997] 5 MLJ 68, where the
surviving partner was entitled to continue to use the firm's name despite its dissolution due to the death of the deceased, as
there was no evidence that the usage of the firm's name had jeopardised the interests of the estate.
3 Partnership Act 1961 s 38(3). See generally PARTNERSHIPS (2011 Reissue) [160.035].
Page 520
Administration and Succession/(2) Executors and Administrators/(9) Personal Representatives' Liabilities/ B.
Liability for Personal Representatives' Own Acts/ (i) Liability to Third Parties
B. LIABILITY FOR PERSONAL REPRESENTATIVES' OWN ACTS
(i) Liability to Third Parties
[330.716]
Personal representative's own contracts
A personal representative1 who enters into a contract after the death of the deceased is deemed to have
entered into the contract for himself2 unless he fully discloses his representative capacity, failing which
he may be sued in his personal capacity.
2 Bank Bumiputra Malaysia Berhad v Yap Kiow Moi [1973] 2 MLJ 104, where the executors were held personally liable
upon the contract that they entered into after the death of the deceased, the plaintiff had no remedy against the estate of
the deceased. See also Chee Hock Lai v Tan Swee Thai [1990] 3 MLJ 477.
[330.717]
Bills of exchange
Where a person signs a bill as drawer, indorser or acceptor, and adds words to his signature indicating
that he signs in a representative character, he is not personally liable on the bill, but the mere addition to
his signature of words describing him as filling a representative character, does not exempt him from
personal liability1.
1 Bills of Exchange Act 1949 (Act 204) s 26(1). See also [330.494] and see generally BANKING AND FINANCE (2014 Reissue)
[330.718]
Torts by personal representative
A personal representative1 guilty of a breach of trust2 is liable for damages and for interest on such
losses3 as may be awarded by way of damages4.
2 In Ch'ng Joo Tuan Neoh (f) and Khoo Ee Lay v Khoo Tek Keong [1932] MLJ 141, CA , it was held that where a trustee
has taken an advance from estate funds to himself, no question of wilful default would arise, inasmuch as it is simply a
case of debtor and creditor and that this principle applies to trustees drawing on account of his contingent share. It was
held further that an order for accounts will not be made on the footing of wilful default on a single act of wilful default. In Re
Tan Tye (decd), Tan Lian Chye v Estate & Trust Agencies (1927) Ltd [1963] MLJ 373, although the defendants committed
Page 521
a breach of trust in failing to draw out and invest money in court within a reasonable time, there was no evidence to show
that they had been guilty of wilful neglect or default. See also A H binti Bakar v Itam bin Sa'ad [1952] MLJ 66. See also
[330.722].
3 Ho Chung Chua v Ho Ching Lek [1898] SSLR Supp 25, where a co-executor can require his fellow executor to make
good sums which he has criminally misappropriated, where there are no persons beneficially interested in the estate
except the two executors.
4 Tan Hiow v Lee Boon Chia (1958) 3 MC 173; Lim Yew Soon v Gan Chye Neo [1908] 2 FMSLR 5.
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Administration and Succession/(2) Executors and Administrators/(9) Personal Representatives' Liabilities/ B.
Liability for Personal Representatives' Own Acts/ (ii) Liability to Beneficiaries on a Devastavit
(ii) Liability to Beneficiaries on a Devastavit
[330.719]
Nature of a devastavit
Where a personal representative1 violates his duties of administration, he commits devastavit2 where
loss occurs to the estate owing to his omission to act promptly3 or to his negligence4, but no liability
however, attaches to executors5 for delay in proving the will6.
2 The Latin name 'devastavit' means liability for maladministration or any breach of trust. See Re Haji Ali bin Haji
Mohamed Noor (decd) [1933] MLJ 135, where two of the three executors were held to have committed devastavit and
hence jointly liable for the loss occasioned up to the date of judgement.
3 In Re Seah Liang Seah (decd) [1937] MLJ 245 the trustees who were also beneficiaries of the estate were sued by the
other beneficiaries for having neglected their duty to recover debts due to the estate, but the trustees' liability for devastavit
did not apply until the debt the trustees owed to the estate had been established. See also [330.720].
4 Ng Ah Kiang v Foo Choo Choon [1908] 1 FMSLR 36; Choy Miew Hem v Choy Weng Tung [1932] SSLR 126 where the
administrators were guilty of wilful neglect or default in allowing a house belonging to the estate and containing ancestral
tablets to be used as a family house without authorisation from the will or agreement with the beneficiaries; Ah binti Bakar
v Itam bin Sa'ad [1952] MLJ 66 where it was held that as there was a breach of trust when the administrator of the
deceased had land belonging to the estate transferred to himself in his own name and not as a representative of the
deceased, the beneficiaries had a right of action against the deceased administrator's personal representatives and that
the relevant limitation period only began to run after they became aware of the said breach of trust after the death of the
said administrator. See also [330.721].
6 As to when proof in solemn form is necessary see [330.364]-[330.366].
[330.720]
Maladministration
The husband of a married woman who commits breach of trust1 or devastavit2 as a trustee or executrix3
or administratrix4 either before or after her marriage, is not subject to liabilities unless he has acted or
intermeddled in the trust or administration of the estate5. Loss arising from failure of duty can be followed
up against the estate of the administrator and his executor is liable to account although he has not
intermeddled with the property and he must account to the beneficiary however difficult it may be6.
When an executor has received assets of his testator into his possession but which he neither distributes
nor accounts for during his lifetime, such portion thereof as is earmarked may, after his death, be
specifically claimed of his executor by persons entitled to share under the will of the first testator; but for
such portion as is not earmarked the legatee thereof, suffering by devastavit, can only rank as a simple
contract debtor against the estate of the deceased executor7.
Page 523
1 As to breach of trust see [330.722].
2 See [330.719] note 2.
3 See [330.243], [330.244].
4 See [330.245].
5 Married Women Act 1957 (Act 450) s 2(2).
6 Ng Ah Kiang v Foo Choo Choon [1908] 1 FMSLR 36.
7 Re Syed Akil (1835) 2 Ky Ecc 14.
[330.721]
Negligence
A personal representative1 is guilty of a devastavit2 where loss occurs to the estate owing to his
negligence, as where by his allowing his fellow executor to have sole possession and unfetter control
over the estate and executorship business, and the personal representative cannot require the active
executor3 to refund a deficiency which has resulted from tortious maladministration4. Loss arising from
the failure of duty can be followed up against the estate of the administratrix and her executor is liable to
account although he has not intermeddled with the property5.
A personal representative is guilty of negligence if he delays in taking proceedings or he is liable if he

permits money, valuable consideration, or property to remain in the hands or under the control of the
banker or solicitor for a period longer than is reasonably necessary to enable the banker or solicitor, as
the case may be, to pay or transfer the same to the personal representative6.
2 See [330.719] note 2.
4 Ho Chung Chua v Ho Ching Lek [1898] SSLR Supp 25. As to maladministration see [330.720].
5 Ng Ah Kiang v Foo Choo Choon [1908] 1 FMSLR 36.
6 Trustee Act 1949 (Act 208) s 28(3)(a) proviso; see [330.561].
[330.722]
Breach of trust
A breach of trust arises where the personal representative1 fails to carry out the duties imposed on him
by statute or by the will of the deceased2 honestly and reasonably3. A personal representative is liable to
be sued for breach of fiduciary duty if he acts without care4 causing loss to the estate, or misappropriates
funds or generally acts to the detriment of the trust or converting moneys belonging to the estate for his
own use5 or exceeds the power as contained in the will to him6. The failure of the trustee to invest trust
funds which will generate reasonable income for the estate is a breach of trust7.
If it appears to the court that a trustee, whether appointed by the court or otherwise, is or may be
personally liable for any breach of trust, but has acted honestly and reasonably and ought fairly to be
excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which
Page 524
he committed such breach, then the court may relieve him either wholly or partly from personal liability
for the same8.
2 Syed Awal bin Omar Shatrie v Syed Ali bin Omar Aljunied (1878) 1 Ky 438; Ghows Khan v Uteh Zabaidah (1936) 2 MC
131.
3 Khoo Tek Keong v Ch'ng Joo Tuan Neoh [1934] MLJ 255, [1934] AC 259, PC .
4 As to the duty to take care see [330.726].
5 In Re Lee Wee Nam (decd) [1982] 1 MLJ 109, it was held that a trustee/beneficiary cannot obtain an interim distribution
of the trust fund until the final disposal of the claim for improper management of the estate against him.
7 Re Tan Tye (decd), Tan Lian Chye v Estate & Trust Agencies (1927) Ltd [1963] MLJ 373.
8 Trustee Act 1949 (Act 208) s 63. See Ch'ng Joo Tuan Neoh (f) and Khoo Ee Lay v Khoo Tek Keong [1932] MLJ 141, CA
, and Re Haji Ali bin Haji Mohamed Noor (decd) [1933] MLJ 135 where the Trustee Act 1949 s 63 was then the Trustees
Ordinance 1949 (No 66 of 1949) s 60. See also Low Fong Mei v Ko Teck Siang [1989] 3 MLJ 140; Ahmed Angullia; bin
Hajee Mohamed; Salleh Angullia v Estate and Trust Agencies (1927) Ltd [1938] MLJ 185, PC . See generally TRUSTS
(2015 Reissue) [310.384] and following.
[330.723]
Liability for loss by reason of improper investment
Where a trustee improperly advances trust money on the security of a charge which would at the time of
the investment be a proper investment in all respects for a smaller sum than is actually advanced
thereon, the security is deemed an authorised investment1 for the smaller sum, and the trustee is only
liable to make good the sum advanced in excess thereof with interest2.
If an investment is wholly unauthorised, the trustee is liable to make good the whole loss3.
1 See Khoo Tek Keong v Ch'ng Joo Tuan Neoh [1934] MLJ 255, [1934] AC 259, PC , which considered the question
whether dispositions of the trust fund by the trustee were such in their nature that it was prudent and right for the trustee to
make and that he ought not to be excused for his breaches of trust. See also [330.505].
2 Trustee Act 1949 (Act 208) s 13(1).
3 In Khoo Tek Keong v Ch'ng Joo Tuan Neoh [1934] MLJ 255, [1934] AC 259, PC , the trustees were empowered by the
will 'to invest all moneys liable to be invested in such investments as they in their absolute discretion think fit'. They lent out
trusts fund: (1) on personal loans on security of jewellery, such loans carrying interest; and (2) on personal loans to
chetties on no security beyond the liability of the borrowers to repay. The Privy Council held that as respects the loans on
security of jewellery and carrying interest, these investments were authorised by the will, but the loans to the chetties being
loans on no security and beyond the liability of the borrowers to repay were dispositions by the trustee of the trust estate
wholly unwarranted by the terms of the trust and in breach of trust.
[330.724]
Unremunerated representative a gratuitous bailee
Where the testator's assets have come into the possession of the personal representative1 and are
afterwards lost to the estate, the equitable rule that the personal representative stands in the position of
a gratuitous bailee, and cannot therefore be charged without some wilful default, applies2. A personal
Page 525
representative enjoys the same protection as a trustee against losses incurred by the appointment of an
agent, solicitor, banker or stockbroker3, and is not responsible for the default of the agent, solicitor,
banker or stockbroker if he employed him in good faith4.
3 As to the power to employ agents see the Trustee Act 1949 s 28 and [330.560].

Page 526
Administration and Succession/(2) Executors and Administrators/(9) Personal Representatives' Liabilities/ C.
Liability for Co-representative's Acts
C. LIABILITY FOR CO-REPRESENTATIVE'S ACTS
[330.725]
Liability for co-executor's acts
In the absence of any provision to the contrary contained in the will, an executor1 is chargeable only for
money and securities actually received by him2, notwithstanding his signing any receipt3 for the sake of
conformity, and is answerable and accountable only for his own acts, receipts, neglects or defaults4 and
not for those of any other executor5.
2 As to the liability to account see [330.727]-[330.729].
5 Trustee Act 1949 (Act 208) s 35(1).
[330.726]
Executor's duty to take care
A personal representative1 is required to discharge his duties and exercise his powers with reasonable
honesty, diligence and prudence. There must be a strong prima facie case of actual misconduct or fraud
or immediate danger of loss for the court is reluctant to interfere with the work of a personal representative
except in special circumstances2.
It is the duty of executors3 to watch over and, if necessary to correct each other's conduct, as
co-executors, however numerous, are regarded in law as individual persons and the acts of any one of
them alone for the purposes of administration are deemed to be the acts of all for they all have a joint and
entire authority over the whole of any movable property4.
2 See Sivanendran s/o V Markandoo v Dr Mahendran a/l V Markandoo [1988] 2 MLJ 169, SC , where in the absence of a
strong prima facie case the court set aside the respondent's action against the administrator and administratrix for the
appointment an interlocutory order and for the appointment of a receiver.
4 See Look Chun Heng v Asia Insurance Co Ltd [1952] MLJ 33. As to the power in relation to movables see [330.543].
Page 527
Administration and Succession/(2) Executors and Administrators/(9) Personal Representatives' Liabilities/ D.
Liability to Account
D. LIABILITY TO ACCOUNT
[330.727]
Duty to keep accounts
One of the remedies available against the personal representative1 of a deceased person for those
seeking information about the deceased person's estate is to be supplied with an account. It is the
imperative duty of the personal representative to keep proper accounts from the time he begins to
administer the estate so as to render proper account to any beneficiary2 who demands the same
throughout the administration of the estate3. It is a requirement before a personal representative winds up
the administration that he submits proper accounts (though simple accounts would be sufficient) for the
beneficiaries' perusal and approval prior to distribution4 although there is no requirement that the accounts
of an estate have to be audited. However, the trustees5 may, in their absolute discretion, from time to
time, but not more than once in every year unless the nature of the trust or any special dealings with the
trust property make a more frequent exercise of the right reasonable, cause the accounts of the trust
property to be examined or audited by an independent accountant6.
2 See Ng Ah Kiang v Foo Choo Choon [1908] 1 FMSLR 36, where the executor of a deceased trustee is liable to the trust
although he has not intermeddled with the property, and must account to the cestuis que trust however difficult it may be.
See also [330.721]. Any interest in the estate of a testator or an intestate is sufficient to support an application for an
inventory (see Myddleton v Rushout (1797) 1 Phillim 244, 23 Digest (Repl) 319. Mere lapse of time is no bar to such right
but the court has a discretion to refuse the application (see Jickling v Bircham (1843) 2 Notes of Cases 463, 23 Digest
(Repl) 320; Scurrah v Scurrah (1841) 2 Curt 919 at 921; Burgess v Marriott (1843) 3 Curt 424 at 426; Ritchie v Rees and
Rees (1822) 1 Add 144 at 158).
3 See Jigarlal Kantilal Doshi v Damayanti Kantilal Doshi [1995] 3 AMR 2590, where it was held that the duty to render
accounts of the estate by the executors is one of the basic functions of all executors or trustees; Rachael Mei Ling Ong v
Dato' Bruno Henry Almeida [1998] 3 CLJ 71, [1998] 1 AMR 600, where the court held that the trustee of the estate should
have given the beneficiaries some information such as copies of the monthly bank statements each month even if he was
unable to supply them with proper audited accounts. The personal representative has to produce an inventory or account
only upon lawful demand: see Phillips v Bignell (1811) 1 Phillim 239, 23 Digest (Repl) 319. See Fong Ah Tai v Fong Yoon
Heng [2004] 7 MLJ 128, where the executors had not provided full and accurate accounts and had also been found to have
incurred improper expenses.
4 As to distribution of assets see [330.563] and following.
6 Trustee Act 1949 (Act 208) s 27(4); see Woon Mooi Hua v Tan Kay Swee [1971] 1 MLJ 169.
[330.728]
No mixing of funds
Funds in a trust account opened in the name of the estate should not be mixed1 with the personal
representative's own funds for any mixing of the estate's funds and the personal representative's funds
would subject the entire funds comprising both accounts to liability to the beneficiaries. If the personal
representative mixes the trust property with his own he is at fault and bears the burden of showing clearly
Page 528
which assets are his beneficially2.
1 See [330.505], [330.603].
2 Lee Hiok Woon v Lee Hiok Ping [1993] 3 SLR 148, CA (Sing) . As to personal representatives see [330.242] and following.
[330.729]
Court order for account
An executor1, administrator2 or trustee3 may be required to furnish and, if necessary, verify accounts4 if a
court order for such a relief is sought5.
Where an administration action6 is brought by a creditor7 of the estate of a deceased person or by a

person claiming to be entitled under a will or on the intestacy8 of a deceased person or to be beneficially
entitled under a trust, and the plaintiff alleges that no or insufficient accounts have been furnished by the
executors, administrators or trustee, as the case may be, then, without prejudice to its other powers, the
court may:
(1) order that proceedings in the action be stayed for a period specified in the order and that the
executors, administrators, or trustees, as the case may be, must within that period furnish
the plaintiff with proper accounts9; and
(2) if necessary to prevent proceedings by other creditors or by other persons claiming to be
entitled as aforesaid, give judgment or make an order for the administration of the estate to
which the action relates and include therein an order that no proceedings are to be taken
under the judgment or order, or under any particular account or inquiry directed, without the
leave of the judge in person10.
4 As to the duty to keep accounts see [330.727].
5 RC O 80 r 2(3)(a); see Siow Hon v Siow Koon Chia [1927] 7 FMSLR 36, where the defendant administrator's discharge
never took effect as a final and effective order since he failed to have the accounts examined by the registrar and to have
had the result of such examination certified by the court.
7 See [330.676]. As to creditors see [330.419].
9 RC O 80 r 5(2)(a).
10 RC O 80 r 5(2)(b); see [330.681].

Page 529
Administration and Succession/(2) Executors and Administrators/(9) Personal Representatives' Liabilities/ E.
Relief from Liability
E. RELIEF FROM LIABILITY
[330.730]
Court's jurisdiction to grant relief
Where a personal judgment is entered against an administrator1 of an estate, in respect of a loan taken
out in his representative capacity, he cannot be sued again in his personal capacity on the unsatisfied
judgment or in respect of the cause of action2. If it appears to the court that a trustee, whether appointed
by the court or otherwise, is or may be personally liable for any breach of trust3, but has acted honestly
and reasonably4, and ought fairly to be excused for the breach of trust and for omitting to obtain the
directions of the court in the matter in which he committed such breach5, then the court may relieve him
either wholly or partly from personal liability for the same6.
2 Chinese Tin Mines Rehabilitation Board v Chee Hoi Voon [1958] MLJ 269.
4 Honesty is not enough; the trustee must establish that he acted reasonably: see Khoo Tek Keong v Ch'ng Joo Tuan Neoh
[1934] MLJ 255, [1934] AC 259, PC .
5 Re Tan Tye (decd), Tan Lian Chye v Estate & Trust Agencies (1927) Ltd [1963] MLJ 373.
[330.731]
Indemnity for beneficiary's interest
Where a trustee1 commits a breach of trust2 at the instigation or request or with the consent in writing of a
beneficiary3, the court may, if it thinks fit, and notwithstanding the beneficiary may be a married woman
restrained from anticipation, make such order as to the court seems just, for impounding all or any part of
the interest of the beneficiary in the trust estate by way of indemnity to the trustee or persons claiming
through him4.
3 See Ramasamy @ Raman a/l Kamache v Thayalan a/l SK Psalaniyandy [1993] MLJU 5 .
4 Trustee Act 1949 (Act 208) s 64(1).
[330.732]
Page 530
Implied indemnity of trustees
A trustee1 is chargeable only for money and securities actually received by him2 notwithstanding his
signing any receipt3 for the sake of conformity and is answerable and accountable only for his own acts,
receipts, neglects, or defaults4, and not for those of any other trustee, or of any banker, broker, or other
person with whom any trust money or securities may be deposited, nor for the insufficiency or deficiency
of any securities, or for any other loss, unless the same happens through his own wilful default5.
2 As to the liability to account see [330.727]-[330.729].
5 Trustee Act 1949 (Act 208) s 35(1).
[330.733]
Relief from claim as to rents and covenants
Where the personal representatives1 have satisfied all liabilities under the lease2 which have accrued and
been claimed up to the date of the transfer to a purchaser3, legatee, devisee or other persons entitled to
call for the transfer and have set apart a sufficient fund to answer any future claim in respect of any fixed
and ascertained sum which the lessee agreed to lay out on the property demised, although the period for
laying it out may not have arrived4, then the personal representatives may make the transfer and
distribute5 the whole of the residuary estate without making any further provision for future liabilities under
the lease6 and they will not be personally liable in respect of any subsequent claim under the lease7,
though the right of the lessor to follow the assets will not be prejudiced8.
2 As to the power to grant leases see [330.548].
3 As to the power of sale see [330.540].
4 See the Trustee Act 1949 (Act 208) s 31(1) and [330.520].
6 Trustee Act 1949 s 31(1)(A).
7 Trustee Act 1949 s 31(1)(B).

Page 531
Administration and Succession/(2) Executors and Administrators/(10) Actions by and Against Personal
Representatives/ A. Practice and Procedure
(10) ACTIONS BY AND AGAINST PERSONAL REPRESENTATIVES

A. PRACTICE AND PROCEDURE
[330.734]
Indorsement as to capacity
Where a person sues or is sued in a representative capacity1, a statement of that capacity must be
indorsed on the writ of summons2.
Any proceedings, including proceedings to enforce a security by foreclosure or otherwise, may be brought
by or against trustees3 or personal representatives4 in their capacity as such without joining any persons
beneficially interested in the trust or estate5.
1 As to the vesting of authority see [330.278]. See also Mohamed Hanif v Chin Ah Bah [1974] 1 MLJ 128 where in the
absence of any averment that the two persons purporting to be administrators had been granted the letters of administration
and their capacity as administrators in the title to the writ, and notwithstanding the extraction of the grant, it was held that
there was no relation back.
2 Cf RHC O 6 r 3(1) (repealed). However, in Loh Koon Moy v Zaibun [1978] 2 MLJ 29, FC , the Federal Court held that
failure to indorse the representative character was a mere irregularity which could be cured. As to such indorsement see
Atkin's Court Forms Malaysia Civil Proceedings: Administration of Estates Form 2 (I [803]), Form 430 (I [2641]). See also
CIVIL PROCEDURE (2014 Reissue) [190.2-009].
5 RC O 15 r 14(1). This is without prejudice to the power of the court to order any person having such an interest to be made
a party, or to make a representation order: O 15 r 14(2). As to representation orders see O 15 r 13.
[330.735]
Joinder of representative and personal claims
Subject to the rule on consolidation of proceedings1, a plaintiff may in one action claim relief against the
same defendant in respect of more than one cause of action if the plaintiff claims or the defendant is
alleged to be liable in the capacity of executor2 or administrator3 of an estate in respect of one or more of
the causes of action and in his personal capacity but with reference to the same estate in respect of all the
others4.
1 Ie RC O 4 r 1: see [330.678].
4 RC O 15 r 1(1)(b).
Page 532
[330.736]
Leave to bring or defend proceedings
It is advisable for a personal representative1 before bringing or defending an action to obtain the consent
of all the beneficiaries on whom the burden of costs would ultimately fall, or if for any reason this is not
forthcoming, to seek directions of the court2. In the absence of the beneficiaries' consent or the court's
sanction, the personal representative litigates at his own risk in that he will be disallowed costs3 and he
may be deprived of his right to be indemnified4 out of the estate if the court considers that he acted
unreasonably in prosecuting or defending the action.
2 See RC O 80 r 2(3)(c) and [330.672].
3 See [330.737].
4 In Yap Kee Par v Molly Yap [1996] 4 MLJ 219, the court allowed the petitioner to take out letters of administration and the
petitioner would be indemnified by the estate his costs and expenses incurred in taking out the letters of administration, in
tracing the properties and administration of the estate should the estate be found to be substantially above the alleged
value.
[330.737]
Costs
In ordinary cases, a personal representative1 who sues as such and fails is personally liable for costs of
the action2, but this will not preclude the personal representative from indemnifying himself from the estate
in the absence of unreasonable prosecution or defence of any action for or against the estate3.
2 In United Asian Bank Bhd v Personal Representative of Roshammah (decd) [1994] 3 MLJ 327, the interveners (the
deceased's children) were held jointly and severally liable for the costs of the plaintiff bank to be taxed on a solicitor and
client basis as the intervention was an unwarranted intrusion; in Goh Cheng Teik v Syarikat Goh Guan Ho [1997] 4 MLJ 403,
the plaintiffs, as holders of letters of administration de bonis non, brought the action as representatives of the deceased, but
without evidence of the beneficiaries' consent and the court's sanction was not obtained they were held to be personally
liable for the costs of the proceedings as the action was conspicuously unmaintainable.
3 As to costs for personal representatives on the trustee basis see RC O 59 r 18; as to costs for all other proper parties on
the common fund basis see O 59 r 15. As to costs generally see CIVIL PROCEDURE (2014 Reissue) [190.12-001] and
following.
Page 533
Representatives/ B. Accrual of Causes of Action
B. ACCRUAL OF CAUSES OF ACTION
[330.738]
Proceedings against the estate
Where any person against whom an action would have lain has died but the cause of action survives, the
action may, if no grant of probate or administration1 has been made, be brought against the estate of the
deceased2.
Such an action purporting to have been commenced against a person is treated, if he was dead at its
commencement as having been commenced against his estate, whether or not a grant of probate or
administration was made before the commencement3.
Where no grant of probate or administration has been made, any judgment or order given or made in the
proceedings will bind the estate to the same extent as it would have been bound if a grant had been made
and a personal representative of the deceased had been a party to the proceedings4.
1 As to the vesting of authority see [330.278]. See also [330.308] and following.
2 RC O 15 r 6A(1). For these purposes an action brought against 'the personal representatives of AB deceased' is deemed
as having been brought against his estate: O 15 r 6A(2). As to personal representatives see [330.242] and following.
3 RC O 15 r 6A(3).
4 RC O 15 r 6A(7).
[330.739]
Executor's claim against testator's estate
Where a testator has expressed the intention of making a gift of personal estate belonging to him to one
who upon his death becomes his executor1, the intention continuing unchanged2, the executor is entitled
to hold the property for his own benefit3, upon his claim against the estate clearly and convincingly.
1 See Lee Hun Kee v Yeoh Seng Huat [1965] 2 MLJ 231. As to legacies to executors see [330.580], [330.581]. As to
executors see [330.243], [330.244].
2 The executor plaintiff has to prove that there was on the part of the deceased a present intention to make an immediate
gift and that such intention survived until the date of the deceased's death: Re Syed Hassan bin Abdullah Aljofri (decd)
[1953] MLJ 190.
3 Re Syed Hassan bin Abdullah Aljofri (decd) [1953] MLJ 190 relied on the principle in Strong v Bird [1874] LR 18 Eq 315
and held that the principle applies also to real estate.
[330.740]
Page 534
Beneficiaries not necessary be parties
A personal representative1 may sue on behalf of or as representing the estate without joining any of the
persons beneficially interested in the estate2; but the court may, at any stage of the proceedings and on
such terms as it thinks just and either of its own motion or on application, make any such order and allow
such amendments (if any) to be made as the court thinks necessary in order to ensure that all matters in
dispute in the proceedings may be effectually and completely determined and adjudicated upon3. Before
making such an order the court may require notice to be given to any insurer of the deceased who has an
interest in the proceedings and to such (if any) of the persons having an interest4 in the estate as it thinks
fit5.
In actions brought against personal representatives as representing the estate6, beneficiaries should not
be joined as parties, unless the court in the same or other proceedings otherwise orders on the ground
that the trustees7, executors8 or administrators9, as the case may be, could not or did not in fact represent
the interest of those persons in the first-mentioned proceedings10.
A residuary beneficiary under an intestacy11 has no interest or property in the estate of the deceased until
the administration of the estate is complete12 and the estate is distributed13.
2 A single surviving executor was empowered to maintain a suit on behalf of the estate under the Probate and
Administration Enactment 1920 (FMS Cap 8) (repealed) without being obliged to join the personal representatives of the
deceased executors: see Khoo Eee Liang v Henry Waugh & Co Ltd [1934] MLJ 40, but when executors sue as executors,
all the executors who have not renounced must be joined as plaintiffs: see S Rengasamy Pillay v Sadhu Pakirswamy [1937]
MLJ 77, CA .
3 RC O 15 r 6A(4)(b).
4 See Ng Moo Yin v Ng Chee Kong [1982] 2 MLJ 42.
5 RC O 15 r 6A(5).
6 The SCR O 8 r 14 (repealed) (see now RC O 15 r 15) provides that proceedings may be initiated against a person
appointed to represent the estate: see United Asian Bank Bhd v Personal Representative of Roshammah (decd) [1994] 3
MLJ 327.
10 RC O 15 r 14(1). See Re Haji Fatimah [1928] 6 FMSLR 154, CA , where the court held that at least one of the
beneficiaries should have been served; cf Ng Lit Cheng v Felixia Varnakulasinghe [1977] 2 MLJ 249, FC , where the Federal
Court held that there is no stringent rule of law or procedure that all the beneficiaries must be served, especially if they are
descendants of the beneficiaries named in the will and their whereabouts are unknown when an application is made to
covert land into money for the purposes of distribution. This decision was affirmed by the Privy Council in Gan Khay Beng v
Ng Liat Cheng [1982] 1 MLJ 163, PC that there was no necessity for the attorney to advertise as the attorney had made
adequate attempts to locate the beneficiaries.
12 Punca Klasik Sdn Bhd v Foh Chong & Sons Sdn Bhd [1998] 1 CLJ 601. As to the administration of estates see [330.498]
and following.
13 Lee Ah Thaw v Lee Chun Tek [1978] 1 MLJ 173, FC ; Law Hap Lien v Henry Lo Siak Jin [1983] 1 MLJ 381; Chor Phaik
Har v Farlim Properties Sdn Bhd [1997] 3 MLJ 188, FC . As to the distribution of assets see [330.563] and following.
[330.741]
Page 535
Procedure on death of a party
Where at any stage of the proceedings in any cause or matter the interest or liability of any party is
assigned or transmitted to or devolves upon some other person, the court may, if it thinks it necessary in
order to ensure that all matters in dispute in the cause or matter may be effectually and completely
determined and adjudicated upon, order that other person to be made a party to the cause or matter and
the proceedings to be carried on as if he had been substituted for the first mentioned party1.
If the deceased is an enemy alien, the general rule of law applies that his personal representative2 stands
in the place of the deceased3 and has no greater right than the deceased would have had himself if he
had lived and accordingly such personal representative cannot bring a claim against any party4.
1 RC O 15 r 7(2). An application for an order under this provision may be made ex parte. As to the substitution of the
personal representative for the deceased as a party to the suit pending appeal see Lee Foon Juan v Neo Foo Kee (1927) 2
MC 118; Capital Insurance Bhd v Kasim bin Mohd Ali [1996] 2 MLJ 425, CA .
2 As personal representatives see [330.242] and following.
3 As to the vesting of authority see [330.278].
4 Hendrik Christiaan Van Hoogstraten v Low Lum Seng [1940] MLJ 138.
[330.742]
Change of parties by reason of death
Where a party to an action dies but the cause of action survives, the action does not abate by reason of
the death1 and, where a party to any action dies after the finding of the issues of fact and before judgment
is given, judgment may be given notwithstanding the death2.
1 RC O 15 r 7(1).
2 RC O 35 r 6.
[330.743]
Failure to proceed after death of party
In the absence of substitution of the deceased by any party by the court1, the personal representatives2 of
the deceased defendant may apply3 to the court for an order that unless the action is proceeded with
within such time as may be specified in the order the action will be struck out as against the defendant
who has died; but where it is the plaintiff who has died, the court may not make an order unless satisfied
that due notice of the application has been given to the personal representatives (if any) of the deceased
plaintiff and to any other interested persons, who in the opinion of the court must be notified4.
1 See [330.741].
3 See the Probate and Administration Act 1959 (Act 97) s 59. See also Oh Jin Ghee v Abdul Hameed [1952] MLJ 108.
4 RC O 15 r 9(1).
Page 536
[330.744]
Death of parties after judgment
Where a plaintiff dies after obtaining judgment, his personal representatives1 must apply for leave to issue
execution2. Leave to issue execution is also necessary where the defendant dies after judgment3.
2 RC O 46 r 2(1)(b). As to the execution of judgments see CIVIL PROCEDURE (2014 Reissue) [190.13-001] and following.
3 RC O 46 r 2(1)(c).
Page 537
Representatives/ C. Actions against Personal Representatives
C. ACTIONS AGAINST PERSONAL REPRESENTATIVES
[330.745]
Defences
A person sued as personal representative1 may in general plead in answer to an action brought against
him in his representative capacity any defence which would have been open to his testator or the
intestate2. He may further rely upon the defence:
(1) that he was never executor3 or administrator4 (ne unques executor5);

(2) that he has fully administered (plene administravit6) or he has fully administered with the
exception of certain assets (plene administravit praeter7);
(3) of the existence of debts of a higher nature and not assets ultra8;
(4) of the right to set off a debt; and
(5) of the expiration of the appropriate period of limitation9.
1 As to personal representatives see [330.242] and following. As to the vesting of authority see [330.278].
2 See Atkin's Court Forms Malaysia Civil Proceedings: Administration of Estates I [253]-[270].
5 As a defence see Atkin's Court Forms Malaysia Civil Proceedings: Administration of Estates Form 470 (I [2801]). See also
Valliammai Achi v Nachiappa Chettiar [1957] MLJ 27, CA , where a claim against a foreign executor who has not obtained a
grant of probate locally, cannot be maintained in his official capacity. This defence may be pleaded in the alternative with
plene administravit: Tyson v Kendall (1850) 19 LJQB 434.
6 As a defence see Atkin's Court Forms Malaysia Civil Proceedings: Administration of Estates Form 472 (I [2805]). As to
complications see Erving v Peters (1790) 3 Term Rep 685.
7 As a defence see Atkin's Court Forms Malaysia Civil Proceedings: Administration of Estates Form 473 (I [2807]). See also
Squire v Arnison (1884) Cab & El 365.
8 This plea is of little importance today, since with the exception of funeral, testamentary and administrative expenses, which
have priority, all debts are now on an equal footing. The Probate and Administration Act 1959 (Act 97) s 69, Sch 1 Pt 1
merely provides for the discharge or payment of the deceased's debts.
9 As to the defence of limitation see [330.750]. See generally the Limitation Act 1953 (Act 254), the Limitation Ordinance
(Sabah) (Cap 72) and the Limitation Ordinance (Sarawak) (Cap 49). All these defences should be specifically pleaded: see
RC O 18 r 8(1). As to defence of limitation against creditors see Lacons v Warmoll [1907] 2 KB 350, CA (Eng) ; Re Blow,
Governors of St Bartholomew's Hospital v Cambden [1914] 1 Ch 233.
[330.746]
Judgment where representative of deceased person interested in proceedings
Where in any proceedings it appears to the court that a deceased person was interested in the matter in
question in the proceedings and that he has no personal representative1, the court may, on the application
Page 538
of any party to the proceedings, proceed in the absence of a person representing the estate of the
deceased person or may by order appoint a person to represent that estate for the purposes of the
proceedings; and any such order, and any judgment or order subsequently given or made in the
proceedings will bind the estate of the deceased person to the same extent as it would have been bound
had a personal representative of that person been a party to the proceedings2.
2 RC O 15 r 15(1).
[330.747]
Death of plaintiff between verdict and judgment
Where a party to any action dies after the finding of the issues of fact and before judgment is given,
judgment may be given notwithstanding the death, but before giving judgment the judge may make an
order substituting the deceased's personal representative1 for the deceased2.
2 RC O 35 r 6. See also O 15 r 7(2) and [330.741].
[330.748]
Judgment before death of plaintiff: execution
Where the deceased plaintiff has obtained judgment, his personal representatives1 must apply to the court
for leave to issue execution2.
2 RC O 46 r 2(1)(b). As to the execution of judgments see CIVIL PROCEDURE (2014 Reissue) [190.13-001] and following.
[330.749]
Enforcement of judgment
Where the assets have fallen into the estate after judgment of assets quando acciderint1, the person
alleging to be entitled to execution may apply to the court ex parte for leave to issue execution
accordingly2. If satisfied by affidavit that: (1) the applicant is entitled to issue execution; (2) the person
against whom execution is sought is liable to execution; and (3) that person has refused or failed to satisfy
a demand made on him for satisfaction3, the court may by order give leave to issue execution, or may
order that any issue or question, a decision on which is necessary to determine the rights of the parties be
tried in any manner in which any question of fact or law arising in an action may be tried, and may in either
case impose such terms as to costs or otherwise as it thinks just4.
1 This Latin term means 'when they fall in'.

Page 539
2 See RC O 46 rr 2(1)(b), 3(1). As to the execution of judgments see CIVIL PROCEDURE (2014 Reissue) [190.13-001] and
following.
3 RC O 46 r 3(2)(d), (e).
4 RC O 46 r 3(3).
Page 540
Representatives/ D. Limitations of Actions
D. LIMITATIONS OF ACTIONS
[330.750]
Defence of limitation
Personal representatives1 may plead any defence of limitation2 upon which their testator or intestate could
have relied.
Whilst no limitation period applies to an action by a beneficiary in respect of fraud3 or fraudulent breach of
trust to which the personal representative was a party or privy to4, or to recover from the personal
representative property or its proceeds in his possession, or previously received by him5 and converted to
his use6, any other action by a beneficiary to recover trust property or in respect of any breach of trust7
may not be brought after the expiration of six years from the date on which the cause of action accrued8.
The issue of limitation does not apply with regard to a suit the object of which is the distribution of an
estate by an administrator9 whose appointment was presumably with the assent of the defendants and in
order to distribute the estate10.
2 See generally the Limitation Act 1953 (Act 254), the Limitation Ordinance (Sabah) (Cap 72) and the Limitation Ordinance
(Sarawak) (Cap 49). See also Aisama binte Abdul v Kavena Mohamed Hussain [1928] SSLR 45; Re Yap Teck Hee (decd),
Yap Pong Sai v Tan See Tiong [1940] MLJ 122; Woon Mooi Hua v Tan Kay Swee [1971] 1 MLJ 169; Lam Wai Hwa v Toh
Yee Sum [1983] 2 MLJ 302, PC .
3 Ah binti Bakar v Itam bin Sa'ad [1952] MLJ 66; Woon Mooi Hua v Tan Kay Swee [1971] 1 MLJ 169.
4 Limitation Act 1953 s 22(1)(a); Limitation Ordinance (Sabah) s 9; Limitation Ordinance (Sarawak) s 9; see Syed Awal bin
Omar Shatrie v Syed Ali bin Omar Aljunied (1878) 1 Ky 438; Wong Mooi Hua v Tan Kay Swee [1971] 1 MLJ 169.
5 Sok-Chun Tang v Vincent Tang Fook Lam [1999] 2 MLJ 274.
6 Limitation Act 1953 s 22(1)(b); Limitation Ordinance (Sabah) s 9; Limitation Ordinance (Sarawak) s 9; see Re Yap Teck
Hee (decd), Yap Pong Sai v Tan See Tiong [1940] MLJ 122; Valautha Assari v Visalachi Achi [1941] MLJ 60.
8 Limitation Act 1953 s 22(2). As to periods of limitation see the Limitation Ordinance (Sabah) and the Limitation Ordinance
(Sarawak). See also Aminah v Meh [1893] 1 SSLR 45; Ah binti Bakar v Itam bin Sa'ad [1952] MLJ 66.
10 Din bin Mat Akip v Som binti Saaid [1949] MLJ 233. As to the distribution of assets see [330.563] and following.
[330.751]
Administrator's claims
In relation to actions for the recovery of land1, an administrator2 is deemed to claim as if there had been
no interval of time between the death of the deceased person and the grant of the letters of
administration3. However, where the claim to immovable property4 is against an adverse possessor5, time
runs in favour of the adverse possessor notwithstanding that no grant of representation to the estate of the
Page 541
deceased has been taken out6.
Dependency claims7 for the benefit of the wife, husband, parent and child, if any, of the deceased whose
death had been caused by the wrongful act, neglect or default of another are brought by and in the name
of the executor of the deceased8, and must be brought within three years after the death of the
deceased9.
On the death of any person all causes of action subsisting or vested in him, will survive against, or as the
case may be, for the benefit of his estate10 and the general limitation period of six years for contract or on
tort generally applies11. However, no proceedings will be maintainable in respect of a cause of action in
tort which has survived against the estate of the deceased person unless proceedings against him in
respect of that cause of action either were pending at the date of death or are taken out not later than six
months after his personal representative12 took out representation13.
Claims by a deceased partner's personal representatives can defeat the defence of limitation as the
period elapsing between the date of death and the date of appointment of a representative does not
count14.
Claims against public authorities must be brought within 36 months from the date of accrual of action15.
1 No action must be brought by any person to recover any land after the expiration of 12 years from the date on which the
right of action accrued to him, or if it first accrued to some person through whom he claims, to that person: Limitation Act
1953 (Act 254) s 9(1); see Mohamed Kunju v Abdul Sameed [1951] MLJ 90.
3 Limitation Act 1953 s 19; see Khaw Sim Tek v Chuah Hooi Gnoh Neoh [1922] 1 AC 120, PC .
4 See Re Ena Mohamed Tamby (decd), Oomah Meida binte Hajee v Moona Jana Shaik Allaudin [1932] MLJ 128 where the
administrator sought to recover possession of land sold by a former executor; Re Choong Lye Hin (decd), Choong Gim
Guan v Choong Gim Seong[1977] 1 MLJ 96, FC .
5 Chia Wan Kiat v Theynappa Ltd [1955] MLJ 198; Ng Moh v Tan Bok Kim [1969] 1 MLJ 46, FC ; Shaw Sung Ching v
Hassan Namazie [1967] 1 MLJ 158, FC (Sing) ; Hajjah Tampoi binte Haji Matusin v Haji Matusin bin Pengarah Rahman
[1984] 2 MLJ 185, PC .
6 Sultan v Lamsah [1897] 5 SSLR 61; Melah binti Indot v Tambysah bin Haji Kassim [1941] MLJ 82.
7 See the Civil Law Act 1956 (Act 67) ss 7, 8.
8 Civil Law Act 1956 s 7(2).
9 Civil Law Act 1956 s 7(5); see Masilaman Vellasamy v A-G [1988] 1 MLJ 3 where the claim for damages was time-barred.
10 Civil Law Act 1956 s 8(1).
11 See the Limitation Act 1953 s 6(1). See also Lembaga Kumpulan Wang Simpanan Pekerja v Ong Lian Chee (suing as
administrator of the estate of Goh Tin Poh, decd) [2010] 4 MLJ 762, CA .
13 Civil Law Act 1956 s 8(3). See Re John Walker (decd) [1953] MLJ 71, CA , where representation was granted in a foreign
jurisdiction, the limitation period of six months runs from the time the grant is resealed in Malaysia; Lee Lee Cheng v Seow
Peng Kwang [1958] MLJ 271; Lee Kah Hong v Teoh Tiang Guan [1971] 2 MLJ 223.
14 Theivanai Achi v M M Kathirasen Chettiar [1941] MLJ 128.
15 Public Authorities Protection Act 1948 (Act 198) s 2(a); see Haji Abdul Rahman v Government of Malaysia [1966] 2 MLJ
174.
[330.752]
Page 542
Limitations of actions in respect of trust property
There is no period of limitation to an action by a beneficiary under a trust being an action:
(1) in respect of any fraud or fraudulent breach of trust to which the trustee1 was a party or
privy; or
(2) to recover from the trustee trust property or its proceeds in the possession2 of the trustee, or
previously received by the trustee and converted to his use3.
An action by a beneficiary to recover trust property or in respect of any breach of trust4, not being an
action for which a period of limitation is prescribed by statute5, must not be brought after the expiration of
six years from the date on which the right of action accrued6. The right of action is not deemed to have
accrued to any beneficiary entitled to a future interest in the trust property, until the interest falls into
possession7. However, where fraud exists, time begins to run from the date such fraud came to the notice
of the beneficiary8; and where there is no person capable of suing the executor9 for adverse possession
until the revocation of the grant of probate10, the period of limitation begins to run from the date of the
cancellation of probate, not from the date of the testator's death11.
2 As to the interpretation of 'possession' see Chia Wan Kiat v Theynappa Ltd [1955] MLJ 198 at 200 per Knight J .
3 Limitation Act 1953 (Act 254) s 22(1); see Re Yap Teck Hee (decd), Yap Pong Sai v Tan See Tiong [1940] MLJ 122,
where it was held that an action by a beneficiary against an executor who has received the testator's property and disposed
of it, is a suit which cannot be barred by any length of time under the statute governing limitation then in force; Woon Mooi
Hua v Tan Kay Swee [1971] 1 MLJ 169; Yeo Chu Hui v Lim Cheng Jin [1993] 1 AMR 745; Sok-Chun Tang v Vincent Tang
Fook Lam [1999] 2 MLJ 274.
5 Ie by the Limitation Act 1953.
6 Limitation Act 1953 s 22(2).
7 Limitation Act 1953 s 22(2) proviso.
8 Limitation Act 1953 s 29(a), (b); see Juman Khan v Registrar, Supreme Court, Johore (1931) 1 JLR 52; Ah binti Bakar v
Itam bin Sa'ad [1952] MLJ 66, where the beneficiaries who were not aware of the fact that the land was transferred in the
name of the administrator, it was held that time began to run only from the date such fraud came to their notice.
11 Re Ena Mohamed Tamby (decd), Oomah Meida binte Hajee v Moona Jana Shaik Allaudin [1932] MLJ 128.
[330.753]
Limitation of actions claiming personal estate of a deceased person
Subject to statutory provisions relating to the limitation of actions in respect of trust property1, no action in
respect of any claim to the personal estate of a deceased person or to any share or interest in such
estate, whether under a will or on intestacy2, must be brought after the expiration of 12 years3 from the
date when the right to receive the share or interest accrued, and no action to recover arrears of interest in
respect of any legacy4, or damages in respect of such arrears, must be brought after the expiration of six
years from the date on which the interest became due5, or where the claimant owner is guilty of laches
and acquiescence6.
Page 543
1 Ie the Limitation Act 1953 (Act 254) s 22(1); see [330.752].
3 Haji Lateh v Tuan Man [1926] 6 FMSLR 88; Ting Ing Kee v Teng Kah Eng (1960-63) SCR 61; Tan Beng Siew v Choo Eng
Choon [1965] 1 MLJ 69, FC (Sing) ; Re Choong Lye Hin (decd), Choong Gim Guan v Choong Gim Seong [1977] 1 MLJ 96,
FC .
4 As to the classification of legacies see [330.563]-[330.566].
5 Limitation Act 1953 s 23; see Re Seah Liang Seah (decd) [1948-1949] Supp MLJ 96, where the court adjudicated that on
the facts the question at issue was not res judicata; cf Othman v Mek [1971] 2 MLJ 214 where the defence of res judicata
succeeded as the administrators could be said to be trying to reopen the same subject of litigation as in the earlier action on
the same subject matter by the deceased himself. See also Lam Wai Hwa v Toh Yee Sum [1983] 2 MLJ 302, PC .
6 Ong Ah Goh v Kuan Keh Lan [1968] 2 MLJ 57; Tan Beng Siew v Choo Eng Choon [1965] 1 MLJ 69, FC (Sing) ; Re
Caunter (decd) [1938] MLJ 174. See also Ho Sim Pat v Chang Ah Ngi [1988] 2 MLJ 629 where the right of the defendants
as administrators to the mortgagee in possession had not been yet extinguished.
[330.754]
Adverse possession and applicability of limitation of time
Where the administrator1 fails to initiate the necessary action under the sale agreement with the adverse
possessor, the counterclaim of the possessor is not time-barred2, if the evidence relating to the claim of
adverse possession is far from clear3.
The burden of proving4 adverse possession for the requisite period5 lies on the adverse possessor.
Where, after the death of an intestate or of an owner of immovable property, a right to sue for possession
would have accrued, but for the absence of a legal representative, the period of limitation runs, from the
time when the right would have accrued, had there been a legal representative of the deceased, and not
from the time when there was in fact a legal representative capable of instituting the suit6.
The claim of an adverse possessor who goes into possession of the land as a chargee7, to receive
produce from that land, is entitled to recover his debt, but the charge8 does not give him a right or interest
in the land9.
To defeat the adverse possessor's claim, the onus is on:
(1) a purchaser to prove the owner's right in title to recover the disputed area is not time-barred
as adverse possession commences only at the date of the sale10 to the purchaser and that
the adverse possessor occupied the land as tenant of the owner11; or
(2) the plaintiff to prove12 that the defendant adverse possessor is 'in possession'13 and such
possession is permissive and not adverse and that the permission is granted either by the
person who holds the legal estate or some other person who is clothed with sufficient
authority by the owner of the legal estate to grant permission14.
2 Ng Moh v Tan Bok Kim [1969] 1 MLJ 46, FC .
3 Hajjah Tampoi binte Haji Matusin v Haji Matusin bin Pengarah Rahman [1984] 2 MLJ 185, PC ; cf Chinese Bankers Trust
Co Ltd v Low Cheng Kiat [1966] 1 MLJ 239, where the failure to demand rent from the licensee who had more than 12
years' occupation could not convert the permissive occupation into an adverse one. See also Melah binti Indot v Tambysah
bin Haji Kassim [1941] MLJ 82 where time runs in favour of the possessor notwithstanding that no grant of representation to
the estate of the deceased had been taken out.
4 See the Evidence Act 1950 (Act 56) s 101.

Page 544
5 See [330.752], [330.753].
6 Hee Ann Hup v Kolanthayan Chetty [1923] 15 SSLR 249.
7 As to the period of limitation for an application by a chargee as prescribed by the Limitation Ordinance (Sarawak) (Cap 49)
Sch item 114 see the Sarawak Land Code (Cap 81) s 111 and Haji Akhbar Khan v D Patel (1960-63) SCR 140.
8 Mahadevan v Manilal & Sons (M) Sdn Bhd [1984] 1 MLJ 266, FC , where the words 'other charge on land' in the Limitation
Act 1953 (Act 254) s 21(1) were construed to include equitable charges and liens.
9 Sakinah v Kua Teong How [1941] MLJ 166.
10 Salleh v Ismail [1952] MLJ 15, where it was held that the purchaser from the mortgagee exercising his power of sale
acquired a new title and limitation ran anew from date of acquisition against him.
11 See Sharikat Bakti Ltd v Gurbachan Singh [1966] 2 MLJ 269; Shaw Sung Ching v Hassan Namazie [1967] 1 MLJ 158,
FC (Sing) .
12 The onus of establishing adverse possession over the prescribed period of limitation does not shift to the defendant until
the plaintiff has substantiated title and permissive occupation.
13 See [330.752] note 2.
14 Govindmal v Ahmad Merican (1931) 1 JLR 57.
[330.755]
Extension of limitation period where debtor administers estate of his creditor
Where letters of administration to the estate of a creditor1 have been granted to his debtor, the running of
the time prescribed for an action to recover the debt2 is suspended while the administration3 continues4.
1 As to grants to creditors see [330.417]-[330.419].
2 Ie an actionable debt: see Saw Swan Kee v Sim Lim Finance (M) Bhd [1985] 1 MLJ 221 at 224, FC, per Mohamed Azmi
FJ .
3 As to what is administrating the estate of a deceased person see Basapah v Narayanan Chettiar [1936] MLJ 26.
4 Limitation Act 1953 (Act 254) s 25.

Page 545
Administration and Succession/(3) Small Estates/(1) Introduction
(3)
SMALL ESTATES
(1) INTRODUCTION
[330.756]
Statute
The distribution of small estates1 of deceased persons and matters incidental thereto are governed by the
Small Estates (Distribution) Act 19552. In exercise of the powers conferred by the Small Estates (Distribution)
Act 19553, the Small Estates (Distribution) Regulations 1955 were enacted4.
1 As to the meaning of small estates see [330.757].
2 Ie the Small Estates (Distribution) Act 1955 (Act 98) which applies currently to 11 states and to one Federal Territory, that is,
Kelantan as from 1 December 1955; Johore, Negeri Sembilan, Pahang, Perak, Perlis, Selangor and Trengganu as from 1 July
1957; Kedah as from 1 August 1962; Penang as from 23 December 1965; Malacca as from 30 December 1965 and the Federal
Territory of Labuan as from 1 January 1989; but is not applicable to Sarawak and Sabah. The Small Estates (Distribution) Act
1955 was amended by the Small Estates (Distribution) (Amendment) Act 2008 (Act A1331) (which came into effect from 1
September 2009 vide PU (B) 320/2009). All petitions relating to a small estate lodged with a Collector before the coming into
operation of the Small Estates (Distribution) (Amendment) Act 2008 will be proceeded with and have effect as if the Small
Estates (Distribution) Act 1955 had not been amended by the Small Estates (Distribution) (Amendment) Act 2008: s 12(1). All
hearings relating to a small estate commenced or pending before the coming into operation of the Small Estates (Distribution)
(Amendment) Act 2008 will, on and after the coming into operation of the Small Estates (Distribution) (Amendment) Act 2008,
continue and be concluded as if the Small Estates (Distribution) Act 1955 had not been amended by the Small Estates
(Distribution) (Amendment) Act 2008: s 12(2).
3 Ie under the Small Estates (Distribution) Act 1955 s 30. The Minister may make regulations to carry into effect the objects of
the Small Estates (Distribution) Act 1955 and to prescribe anything required to be prescribed under this Act: s 30.
4 Ie the the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) which was amended in certain parts by the Small
Estates (Distribution) (Amendment) Regulations 2009 (PU (A) 316/2009) which came into effect from 1 September 2009.
[330.757]
Meaning of small estates
A small estate means an estate of a deceased person consisting wholly or partly of immovable property1
situated in any State2 and not exceeding RM2,000,0003 in total value4.
1 Where an estate does not comprise of immovable property but only movable property, then such an estate cannot be
construed as a small estate within the Small Estates (Distribution) Act 1955 (Act 98) s 3(2), as a small estate must comprise of
immovable property.
2 The Small Estates (Distribution) Act 1955 s 2 defines 'State' to include a Federal Territory.
3 Note that the total value was subsequently increased from RM600,000 to RM2,000,000 by the Small Estates (Distribution)
(Amendment) Act 2008 (Act A1331) s 4 (which came into effect from 1 September 2009 vide PU (B) 320/2009).
4 Small Estates (Distribution) Act 1955 s 3(2). See Ibrahim bin Saad v Haji Hamid bin Lebai Taib [1997] MLJU 189. As to the
valuation of the property of a small estate see [330.758].
Page 546
[330.758]
Valuation of property of a small estate
The value of the property (with no deduction for the deceased's debts1) comprised in a small estate2 will be
deemed to be its value at the date of the filing of a petition for probate or letters of administration or lodging
of a petition for distribution3 under the Small Estates (Distribution) Act 1955 in respect of the estate or, if
more than one such petition has been filed or lodged in respect of the same estate, at the date of the filing or
lodging of the earliest petition4.
Further, in ascertaining the value of the property comprised in an estate, no deduction may be made on
account of the deceased debts. There may not be included in such an estate any property which the
deceased held or was entitled to as a trustee and not beneficially5. However, any land held in the name of
the deceased by any form of registered title will be deemed to be part of his estate, whether subject to caveat
or not, unless the land is expressly registered in the deceased's name as representative, trustee or
guardian6.
For the purpose of determining whether any estate is or is not a small estate, the Land Administrator7 or a
valuation officer8, must value the movable property comprised therein wherever situate, if any9, and the Land
Administrator's or the valuation officer's valuation of the movable property comprised in an estate will be
conclusive10.
1 See the Small Estates (Distribution) Act 1955 (Act 98) s 3(4).
3 The applicant or petitioner must complete the form as prescribed by the Small Estates (Distribution) Regulations 1955 (LN
495 of 1955) reg 3(1), ie, Sch 1 Form A. See Re Ch'ng Tiam Swee (decd) [1950] MLJ 91 on the jurisdiction of the Registrar to
determine petitions for letters of administration which is determined by the value of the estate as at the date on which the
petition or application was filed. As to the procedure for petition see [330.762] and following.
4 Small Estates (Distribution) Act 1955 s 3(3).
6 Small Estates (Distribution) Act 1955 s 3(4) proviso.
7 Note that the Small Estates (Distribution) (Amendment) Act 2008 (Act A1331) s 2 (which came into effect from 1 September
2009 vide PU (B) 320/2009) substituted the word 'Collector' with the words 'Land Administrator'. 'Land Administrator' means: (1)
in relation to Sarawak, the District Officer appointed for a district and includes any Assistant District Officer or Sarawak
Administrative Officer appointed for the district or part thereof; (2) in relation to Sabah, the Collector of Land Revenue appointed
for a district and includes any Assistant Collector of Land Revenue appointed for the district or part thereof; and (3) in relation to
the States in Peninsular Malaysia, the Land Administrator appointed for a district and includes any Assistant District Land
Administrator appointed for the district or part thereof: Small Estates (Distribution) Act 1955 s 2. Also note that the Small
Estates (Distribution) (Amendment) Regulations 2009 (PU (A) 316/2009) reg 2 (which amends the Small Estates (Distribution)
Regulations 1955 (LN 495 of 1955)) also substituted the word 'Collector' with the words 'Land Administrator'.
8 Inserted by the Small Estates (Distribution) (Amendment) Act 2008 s 6(c)(i).
9 Small Estates (Distribution) Act 1955 s 8(5) (as amended by the Small Estates (Distribution) (Amendment) Act 2008 s 6(c)(ii).
10 Small Estates (Distribution) Act 1955 s 8(6) (as amended by the Small Estates (Distribution) (Amendment) Act 2008 s 6(d)).
The Land Administrator for each district in which is situated any part of the immovable property comprised in an estate in
respect of which a petition for distribution has been lodged or a valuation officer must determine the value of that property, as at
the date of lodging the petition, or, if more than one petition has been lodged, as at the date of lodging the earliest petition, and
every such valuation will be conclusive for the purposes of the Small Estates (Distribution) Act 1955: see s 4(5) (as amended by
the Small Estates (Distribution) (Amendment) Act 2008 s 5(b)).
Page 547
Administration and Succession/(3) Small Estates/(2) Jurisdiction
(2) JURISDICTION
[330.759]
Jurisdiction in respect of small estates
The Land Administrator1 of the district where a petition has been lodged or in the case of more than one
petition has been lodged, the Land Administrator of the district where the first petition has been lodged, will
have exclusive jurisdiction to deal with the distribution and administration of the small estate2 wherever
situated3. However, the Director of Lands and Mines4 where all the property is situated in one State5 or the
Director General of Lands and Mines6 where the property is situated partly in one State and partly in another,
may upon application duly made on that behalf, order that any petition under the Small Estates (Distribution)
Act 1955 be heard and determined by the Land Administrator of any other district, notwithstanding that the
property in that district consists solely of movable property, whenever it is made to appear that such an order
will tend to the general convenience of the parties or witnesses or is otherwise expedient for the ends of
justice; and the Land Administrator will thereupon have exclusive jurisdiction to order distribution of the
estate and, if necessary, to grant letters of administration thereof7.
Any order made by the Director of Lands and Mines or the Director General of Lands and Mines is final and
not subject to any appeal8.
1 For the meaning of 'Land Administrator' see [330.758] note 7.
3 Small Estates (Distribution) Act 1955 (Act 98) s 4(2) (as amended by the Small Estates (Distribution) (Amendment) Act 2008
(Act A1331) s 5(a) (which came into effect from 1 September 2009 vide PU (B) 320/2009)). Prior to the amendment, the Land
Administrator of the district where the greater part in value of the property was situated would have jurisdiction. See Fatimah
binti Mat Akir v Sharifah binti Haji Ahmad [1977] 1 MLJ 106, FC , where the court held that under the then Small Estates
(Distribution) Ordinance 1955 (Ord No 34 of 1955) s 4(1), it is not the High Court but the Collector (now known as Land
Administrator) who exclusively has original jurisdiction in the distribution of small estates. See also Lokmanlaal Hakim bin Ramli
v Haji Ismail bin Ishak (unreported, 1987; Civil Suit No 25-159-1987) which followed Fatimah binti Mat Akir v Sharifah binti Haji
Ahmad (above). But in Ibrahim bin Saad v Haji Hamid bin Lebai Taib [1997] MLJU 189, where it was held in the reading of the
Small Estates (Distribution) Act 1955 ss 4(1), 7(1), the Collector (now known as Land Administrator) or the Local Administrator
had exclusive jurisdiction to deal with the distribution and administration of small estates; Raymond Jeyaraj a/l Webber Timothy
v Priscilla Jeyanthi a/p Webber Timothy (unreported, 6 October 1998; Civil Suit No 21-173-96), Mallal's Current Law (February
1999) para 191. As to the powers of the Land Administrator in distribution see [330.782] and following. See also Ahmad bin
Abdul Majeed v Habibah bte Abdul Majid [2001] 2 MLJ 245, where the High Court reiterated that it has no jurisdiction to handle
or hear the plaintiff's application to set aside an order for the division of the estate made by the Land Administrator as the
dispute involved a small estate that was subject to the provisions of the Small Estates (Distribution) Act 1955 therefore
exclusively within the original jurisdiction of the Land Administrator.
4 'Director of Lands and Mines' means a Director of Lands and Mines (State) and includes the Director of Lands and Surveys
for Sabah and the Director of Lands and Surveys for Sarawak: Small Estates (Distribution) Act 1955 s 2.
5 For the meaning of 'State' see [330.757] note 2.
6 'Director General of Lands and Mines' means the Director General of Lands and Mines (Federal) and, in relation to an estate
the whole of the immovable property comprised in which is situated in Sabah or Sarawak, includes the Director of Lands and
Surveys, Sabah, or the Director of Lands and Surveys, Sarawak, as the case may require: Small Estates (Distribution) Act 1955
s 2.
7 Small Estates (Distribution) Act 1955 s 4(2) proviso.
8 Small Estates (Distribution) Act 1955 s 4(3). A copy of any order made pursuant to s 4(2) must be sent to the applicant and to
any Land Administrator who is in the opinion of the Director of Lands and Mines, or the Director General of Lands and Mines, as
the case may be, is affected thereby: see s 4(4).
Page 548
[330.760]
High Court to grant probate of testamentary dispositions relating to small estates
The High Court1 has the exclusive jurisdiction to grant probate of any will or testamentary disposition or
letters of administration2 in any case in which the deceased has left a valid will or other valid testamentary
disposition in respect of a small estate3 or part thereof, and the grant when made will have effect in all
respects as if the estate had not been a small estate4.
If upon the hearing of any petition for probate or letters of administration with a will or copy of a will annexed,
probate or letters of administration with the will or a copy of a will annexed are not granted, the court may if
satisfied that all the necessary parties are before the court:
(1) grant letters of administration to any person to whom letters would have been granted on an
intestacy if the estate had not been a small estate;
(2) direct that a petition for distribution5 of the estate be lodged with the Land Administrator6
having jurisdiction of small estates7; or
(3) order any Land Administrator named in the order to proceed with the distribution of the estate
as if a petition therefor had been duly lodged8.
The High Court also has exclusive jurisdiction to reseal any grant of representation made outside Malaysia in
respect of the estate of a deceased person and where any grant has been resealed affecting a small estate,
the grant will have effect as if the estate had not been a small estate9.
1 'High Court' means the High Court in Malaya or the High Court in Borneo, as the case may require: Small Estates
(Distribution) Act 1955 (Act 98) s 2. By virtue of the Constitution (Amendment) Act 1994 (Act A885) s 46, with effect from 24
June 1994, references to the High Court in Borneo will be construed as references to the High Court in Sabah and Sarawak.
2 See the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) reg 7(2), where if the nature of the case requires a
grant of letters of administration, the grant must be in Sch 1 Form F together with a Schedule of the property of the deceased in
Form FF showing all assets and liabilities, if any, of the deceased and any security required to be taken must be in Sch 1 Form
G.
5 'Petition for distribution' means a petition for the distribution of a small estate lodged under the Small Estates (Distribution) Act
1955 s 8: s 2.
6 See the Small Estates (Distribution) Regulations 1955 reg 3, where the Land Administrator must immediately complete Pt I
items 1-3 and Pt II of a card in Sch 1 Form B and send the same forthwith to the Registrar, Principal Registry, High Court, Kuala
Lumpur or Kuching as the case may require and who upon receipt of the notification must cause a search to be made for any
previous application in respect of the deceased person referred to therein and must certify forthwith or within a period of one
month therefrom, the result thereof to the Land Administrator in Sch 1 Form C, in default of which the Land Administrator may
proceed with the issuance of the notice in Sch 1 Form D. For the meaning of 'Land Administrator' see [330.758] note 7 and as
to the procedure for petition see [330.762] and following.
7 See the Small Estates (Distribution) Act 1955 s 8. See also Tijah bte Hassin lwn Pentadbir Tanah Daerah, Alor Gajah [1994] 3
MLJ 424. As to the jurisdiction in respect of small estates see [330.759].
8 Small Estates (Distribution) Act 1955 s 5(2). Any order made by the High Court pursuant to s 5(2) must be substantially in Sch
1 Form U and signed by the Registrar: see the Small Estates (Distribution) Regulations 1955 reg 13. Where any order is made
under the Small Estates (Distribution) Act 1955 s 5(2)(c), the Land Administrator therein named must, upon receipt of a copy of
the order, forthwith proceed to distribute the estate in accordance with the Act: s 5(3). As to the powers of the Land
Administrator in distribution see [330.782] and following.
9 Small Estates (Distribution) Act 1955 s 6.
[330.761]
Page 549
Transfer of petitions
If the Registrar1 is satisfied that any intestate estate in respect of which a petition for letters of administration
has been filed in the High Court2 is a small estate3, he must transfer such petition to the Land Administrator4
having jurisdiction to order distribution of that estate5 and the Land Administrator may at his discretion either
treat the petition as if it were a petition for distribution6 of the estate under the Small Estates (Distribution) Act
19557 or if the case so requires direct that a fresh petition must be lodged8.
If the Land Administrator decides that the estate is:
(1) not a small estate, he must transfer the petition, with or without amendment, to the High Court9
and the petition will, unless the court otherwise directs, be treated therein as if it were a petition
for letters of administration upon an intestacy10, provided that the discretion of the Land
Administrator will not apply where a petition has been transferred to the Land Administrator in
the manner as stated in the preceding paragraph11;
(2) a small estate and where more than one petition has been lodged, he must either transfer the
petition to the Land Administrator of the district where the first petition has been lodged, but if it
appears to him that it would be more expedient for the petition to be heard by another Land
Administrator, he may apply to the Director of Lands and Mines12 or the Director General of
Lands and Mines13, as the case may require, for an order to be made under the Act14.
1 'Registrar' means the Registrar of the High Court and includes a Deputy Registrar, a Senior Assistant Registrar and an
Assistant Registrar of the High Court: see the Small Estates (Distribution) Act 1955 (Act 98) s 2.
2 For the meaning of 'High Court' see [330.760] note 1.
3 As to the meaning of small estates see [330.757]. As to the valuation of property of a small estate see [330.758].
5 See the Small Estates (Distribution) Act 1955 s 4, where the Land Administrator has the exclusive jurisdiction to deal with the
distribution and administration of the whole of the small estate. As to the powers of the Land Administrator in distribution see
6 For the meaning of 'petition of distribution' see [330.760] note 6.
7 Ie under the Small Estates (Distribution) Act 1955 s 8.
8 See the Small Estates (Distribution) Act 1955 s 7(1). Any order made by the Registrar pursuant to s 7(1) must be that set out
in the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) Sch 1 Form V and signed by the Registrar: see reg 14(1).
As to the procedure for petition see [330.762] and following.
9 If the estate appears not to be a small estate within the provisions of the Small Estates (Distribution) Act 1955, the Land
Administrator must complete the form in the Small Estates (Distribution) Regulations 1955 Sch 1 Form I and send the same
with all relevant papers to the Registrar of the appropriate court: reg 5(1).
11 The transfer is made pursuant to the Small Estates (Distribution) Act 1955 s 8(7) proviso.
12 For the meaning of 'Director of Lands and Mines' see [330.759] note 4.
13 See also the Small Estates (Distribution) Regulations 1955 reg 5(2), (3), (4). For the meaning of 'Director General of Lands
and Mines' see [330.759] note 6.
14 Ie under the Small Estates (Distribution) Act 1955 s 4(2) (as amended by the Small Estates (Distribution) (Amendment) Act
2008 (Act A1331) s 5(a): sees 8(8) (as amended by the Small Estates (Distribution) (Amendment) Act 2008 s 6(e)).
Page 550
Administration and Succession/(3) Small Estates/(3) Procedure for Petition/ A. Before Hearing
(3) PROCEDURE FOR PETITION

A. BEFORE HEARING
[330.762]
Who may petition for distribution
Where any person has died intestate leaving a small estate1:
(1) any person claiming to be interested in the estate as a beneficiary; or

(2) a creditor; or
(3) a purchaser2; or
(4) where a proprietor of any land has died and no proceedings, to the knowledge of a
Settlement Officer of the district, or the penghulu3 of the locality, in which the proprietor's
land is situated, have, within six months of the date of death, been taken to obtain a grant of
probate or letters of administration or for distribution under the Small Estates (Distribution)
Act 1955 of the estate of the deceased4, the penghulu a Settlement Officer; or
(5) the Corporation5,
may lodge with the Land Administrator6 having jurisdiction, a petition for the distribution7 of the estate8.
2 See Ismail bin Ishak v Hashim bin Che Mat [1983] 1 MLJ 385, where the purchaser's right of land of a small estate was
defeated by the appellant who had acquired a prior right to the title of the said land because by the time the Collector of
Land Revenue (now known as Land Administrator) made the order for distribution under the then Small Estates
(Distribution) Ordinance 1955 (Ord No 34 of 1955), the appellant had already acquired title to the said land by adverse
possession as against the true owner. 'Purchaser' means a person who, at the date of the filing by himself, or by any other
person, of a petition for distribution, is in occupation of any land registered in the name of the deceased, whether as sole
proprietor or co-proprietor, by virtue of an agreement for the sale of that land or any interest therein by the deceased to
himself or to any person through whom he claims: Small Estates (Distribution) Act 1995 (Act 98) s 2.
3 'Penghulu' with reference to Sabah and Sarawak, is to be construed as a reference to a native chief by whatever style
called: Small Estates (Distribution) Act 1955 s 2.
4 See the Small Estates (Distribution) Act 1955 s 18(1); and see also [330.788].
5 The original provision which used the word 'Official Administrator' is now construed as 'Corporation': see the Public Trust
Corporation Act 1995 (Act 532) s 43(3).
7 For the meaning of 'petition for distribution' see [330.760] note 5.
8 Small Estates (Distribution) Act 1995 s 8(1) (as amended by the Small Estates (Distribution) (Amendment) Act 2008 (Act
A1331) s 6(a) which came into effect from 1 September 2009 vide PU (B) 320/2009).
[330.763]
Delivery of documents
The petitioner must deliver to the Land Administrator1 all issue documents of title or other documents
evidencing title to immovable property relating to the estate in his possession or power2.
Page 551
2 Small Estates (Distribution) Act 1955 (Act 98) s 8(2) (as amended by the Small Estates (Distribution) (Amendment) Act
2008 (Act A1331) s 6(b) (which came into effect from 1 September 2009 vide PU (B) 320/2009).
[330.764]
Filing of petition
The Land Administrator1 must thereupon give notice to the principal registry of the High Court2 of the
lodging with him of the petition and must ascertain from the registry whether any petition relating to the
estate has, before that petition having been lodged, been filed in the High Court or lodged with any other
Land Administrator3. However, if no such petition has been so filed or lodged, the Land Administrator must
investigate the facts and matters alleged in the petition and determine whether the estate is or is not a
small estate4 and whether he has jurisdiction5.
3 Small Estates (Distribution) Act 1955 (Act 98) s 8(3).
4 As to the meaning of small estates see [330.757]. As to valuation of property of a small estate see [330.758].
5 See the Small Estates (Distribution) Act 1955 s 8(4). As to jurisdiction see [330.759].
[330.765]
Power of Land Administrator to stay proceedings
Under the Small Estates (Distribution) Act 19551, if the Land Administrator2 upon ascertaining from the
principal registry of the High Court has notice that:
(1) any other petition for distribution3 had been previously lodged4 in respect of the estate with
any other Land Administrator; or
(2) any application has been made to the Director of Lands and Mines or the Director General of
Lands and Mines5 under the Act6; or
(3) any petition for probate or letters of administration with a will or a copy of a will annexed has
been filed in the High Court7 in respect of the estate,
he must forthwith stay all proceedings upon the petition before him until either, as the case may be, that
other petition has been transferred to him pursuant to the Act8 or an order has been made by the court9
directing him to distribute the estate or an order has been made10 conferring jurisdiction upon him11.
Where a petition for distribution is lodged with a Land Administrator and that any movable property
comprised in the estate had been administered or is being administered by the Corporation, the
Corporation must deliver to the Land Administrator any document relating to the property for the purpose
of determining whether the estate is or is not a small estate12.
1 Ie pursuant to the Small Estates (Distribution) Act 1955 (Act 98).

Page 552
4 If the result of the search shows that a previous application has been made, upon the expiry of a period of one month, then
the Land Administrator must forthwith stay all proceedings and must notify the petitioner thereof and of his rights under the
Small Estates (Distribution) Act 1955 s 8(9): see the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) reg 4.
5 For the meaning of 'Director of Lands and Mines' and 'Director General of Lands and Mines' see [330.759] note 4 and
[330.759] note 6 respectively.
6 Ie under the Small Estates (Distribution) Act 1955 s 4(2) (as amended by the Small Estates (Distribution) (Amendment)
Act 2008 (Act A1331) s 5(a) (which came into effect from 1 September 2009 vide PU (B) 320/2009).
8 Ie under the Small Estates (Distribution) Act 1955 s 8(8).
9 Ie an order made pursuant to the Small Estates (Distribution) Act 1955 s 5(2)(c).
10 Ie an order made by virtue of the Small Estates (Distribution) Act 1955 s 4(2).
11 Small Estates (Distribution) Act 1955 s 8(9) (as amended by the Small Estates (Distribution) (Amendment) Act 2008 s
6(f)).
12 Small Estates (Distribution) Act 1955 s 8A (inserted by the Small Estates (Distribution) (Amendment) Act 2008 s 7).
[330.766]
Service of notice of petition for distribution
Subject to the provisions of the petition for distribution1 under the Small Estates (Distribution) Act 19552,
the Land Administrator3 having jurisdiction in respect of the small estate4 must, as soon as possible after
the lodging of the petition for distribution, cause notice of the petition and of the date and place of hearing
to be served in the prescribed manner upon all persons named in the petition5 as beneficiaries of or
claimants to the estate or any interest therein6 or who appears to the Land Administrator to be interested
in the distribution of the estate7.
Failure or omission to serve any such notice upon any person, unless the failure or omission has in the
opinion of the High Court8 occasioned any substantial injustice, will not invalidate any proceedings taken
pursuant to the Act9.
2 Ie under the Small Estates (Distribution) Act 1955 (Act 98) s 8.
4 As to the meaning of small estates see [330.757] and as to jurisdiction see [330.759].
5 The Land Administrator must issue a notice of the petition and date, time and place of hearing in the form set out in the
Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) Sch 1 Form D: see reg 4(2).
6 See the Small Estates (Distribution) Regulations 1955 reg 6.
7 Small Estates (Distribution) Act 1955 s 9(1). As to filing see [330.764] and hearing of the petition for distribution see
[330.771].
9 See the Small Estates (Distribution) Act 1955 s 9(1) proviso.

Page 553
[330.767]
Advertisement
The Land Administrator1 must also cause notice of the petition and of the date and place of the hearing to
be published2 in such manner and at such times and places as may be prescribed3.
2 See the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) reg 6(1).
3 Small Estates (Distribution) Act 1955 (Act 98) s 9(2). As to the hearing of the petition for distribution see [330.771].
[330.768]
Appointment of representatives of minors or persons of unsound mind
Where any person, who is named in the petition as a beneficiary of or claimant to the estate or any
interest therein or who appears to the Land Administrator1 to be interested in the distribution of the estate,
is or appears to the Land Administrator to be a minor or a person of unsound mind2, the Land
Administrator may, by an order in writing, appoint some suitable and proper person to be the guardian of
the minor or person of unsound mind for the purposes of all proceedings for the distribution of the estate
under the Small Estates (Distribution) Act 19553. All such proceedings will be as effective and binding
upon all persons concerned as if that person had not been a minor or person of unsound mind4.
The Land Administrator must have regard to any personal law5 or custom affecting the minor or person of
unsound mind in appointing6 a person to be a guardian of the minor or person of unsound mind7.
2 See Re Mamat bin Dat San, Mek Som v Awang bin Senik [1972] 1 MLJ 59, FC ; Fatimah binti Mat Akir v Sharifah binti Haji
Ahmad [1977] 1 MLJ 106, FC .
3 Ie the Small Estates (Distribution) Act 1955 (Act 98).
5 See Re Haji Mansur bin Duseh Alias Matso bin Duseh (decd) [1940] MLJ 110; Sali binti Haji Salleh v Achik Alias Bachik
bin Enot [1941] MLJ 14, where it was held that the distribution of lands was governed by the personal law of the deceased.
6 The appointment by the Land Administrator of a representative of a minor or of a person of unsound mind must be in the
form set out in the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) Sch 1 Form H: reg 8(1).
[330.769]
Place of hearing of petition for distribution
The hearing of every petition for distribution1 must be heard in such place in the district of the Land
Administrator2 as he must have regard to the convenience of the parties and witnesses generally may
appoint3 and such place for the hearing to be held will be deemed an open and public place to which the
public must have access4.
Without prejudice to the extent of the Land Administrator's powers as to the venue of the hearing of the
Page 554
petition for distribution, where there is the question, or one of the questions, at issue in any such hearing
which relates to a particular lot of land, the Land Administrator may, in his discretion, hold the hearing or
any part thereof at a convenient place on or near to that land5.
4 Small Estates (Distribution) Act 1955 s 11(2). As to the hearing of the petition for distribution see [330.771].
[330.770]
Land Administrator's power in relation to hearing
The Land Administrator1 will, in relation to the hearing of a petition for distribution2, have all the powers of
a Magistrates' Court in the exercise of its civil jurisdiction for the summoning and examination of witnesses
(including any person on whom a notice of the petition is required to be served under the Small Estates
(Distribution) Act 19553), for the administration of oaths or affirmations and for compelling the production
and delivery to him of all documents, including issue documents of title and other documents evidencing
title4.
Every person required to appear before, or to produce5 or deliver any document to the Land Administrator
as aforesaid, is legally bound to do so within the meaning of the Penal Code6.
2 For the meaning of 'petition for distribution' see [330.760] note 5 and as to the hearing of a petition for distribution see
[330.771].
4 Small Estates (Distribution) Act 1955 s 11A(1).
5 Small Estates (Distribution) Regulations 1955 (LN 495/1955) Sch 1 Form DD may be issued and served onto such person
who fails to appear or to produce in person to give evidence on specific matters crucial to the petition or to produce specific
documents in his possession.
6 Ie under the Penal Code (Act 574) ss 174, 175: see the Small Estates (Distribution) Act 1955 s 11A(2).The Penal Code ss
174, 175 refer to non-attendance in obedience to an order from a public servant and omission to produce a document to a
public servant by a person legally bound to produce such a document. Non-compliance with ss 174, 175 is punishable with a
fine or imprisonment, or with both: see ss 174, 175.
Page 555
Administration and Succession/(3) Small Estates/(3) Procedure for Petition/ B. Hearing of Petition for
Distribution
B. HEARING OF PETITION FOR DISTRIBUTION
[330.771]
Hearing procedure and duties of Land Administrator at hearing
The Land Administrator1, as required by statutory law2:
(1) must record in writing the evidence (given on oath or affirmation) of all witnesses in
attendance, and allow cross-examination of any such witnesses by any person present who
claims to be interested in the estate or who has been appointed a guardian of a minor or a
person of unsound mind3;
(2) may, in his discretion, examine as a witness any person who appears to him to be capable
of giving relevant evidence and must allow him to be cross-examined by any person present
who claims to be interested in the estate or who has been appointed a guardian of a minor
or a person of unsound mind4;
(3) may require the attendance of any penghulu5 or a Settlement Officer whom he believes to
be able to give any material information regarding the deceased or his estate and may
examine him as a witness6;
(4) must call evidence when necessary to ascertain the religious or customary law7 applicable to
the devolution of the estate of the deceased8;
(5) must ascertain the amounts of the estate duty, if any, the funeral expenses and debts of the
deceased, wherever arising9;
(6) must consider the claims of any alleged purchasers10 who attend the hearing and must
ascertain and record who, at the date of the hearing, is in actual occupation of any land
claimed by an alleged purchaser, the date, as nearly as the evidence admits, when he went
into occupation, and who, at the date of lodging the petition, was in possession of the
relevant issue document of title11;
(7) must ascertain, in such manner as may be most appropriate, the law applicable to the
devolution of the estate of the deceased, and must decide who in accordance with that law
are the beneficiaries and the proportions of their respective shares and interests12;
(8) may, if he considers it necessary or desirable, adjourn the hearing from time to time and may
appoint a different place for any such adjourned hearing13;
(9) may reopen the hearing for the purpose of taking further evidence on any relevant matter14
at any time before the making of a distribution order15, and must reopen the hearing for such
purpose if so directed by the Director of Lands and Mines16;
(10) may continue with the hearing or re-hear of the whole or part of the evidence already taken
or carry out any other function as provided by the Act in relation to the petition, where the
Land Administrator who is conducting or has conducted any hearing of a petition dies, or is
unable through illness, transfer or any other cause to exercise his functions under the Act17.
3 Small Estates (Distribution) Act 1955 s 12(1). See Re Mamat bin Dat San, Mek Som v Awang bin Senik [1972] 1 MLJ 59,
FC , where the court held that the order of distribution had been made by consent of all the beneficiaries and the guardian
appointed by the Collector (now known as Land Administrator) of one of the beneficiaries who was of unsound mind.
Page 556
5 For the meaning of 'penghulu' see [330.762] note 3.
6 Small Estates (Distribution) Act 1955 s 12(3) (as amended by the Small Estates (Distribution) (Amendment) Act 2008 (Act
A1331) s 8).
7 See Maani v Mohamed [1961] 1 MLJ 88, where the court held that Collector (now known as Land Administrator) should
rehear the case and consider the personal law of the deceased and any local custom forming part thereof and for that
purpose to require the attendance of all persons who may be able to give evidence regarding any custom applicable to his
estate of the deceased. See also Re Haji Mansur bin Duseh Alias Matso bin Duseh (decd) [1940] MLJ 110; Sali binti Haji
Salleh v Achik Alias Bachik bin Enot [1941] MLJ 14.
11 Small Estates (Distribution) Act 1955 s 12(6). See Yaacob bin Mien v Mohd Rashid bin Tandang (unreported, 12 July
1993; Civil Suit No 22-311-86).
12 Small Estates (Distribution) Act 1955 s 12(7).In the case where the beneficiary is a major and of sound mind is unable to
attend the hearing and the circumstances are such that he may want to surrender his share or interest in any immovable or
movable property or agree to the method of distribution thereof, he may instead tender a Letter of Consent to the respective
Land Administrator in the prescribed form: Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) reg 4A, Sch 1
Form DDA (inserted by the Small Estates (Distribution) (Amendment) Regulations 2009 (PU (A) 316/2009) reg 3 which
came into effect from 1 September 2009).
14 See Maani v Mohamed [1961] 1 MLJ 88.
15 'Distribution order' means an order for the distribution of a small estate made under the Small Estates (Distribution) Act
1955: s 2.
16 Small Estates (Distribution) Act 1955 s 12(9). For the meaning of 'Director of Lands and Mines' see [330.759] note 4.

Page 557
Administration and Succession/(3) Small Estates/(3) Procedure for Petition/ C. Procedure after Hearing
C. PROCEDURE AFTER HEARING
[330.772]
Appeal
Subject to the provisions of statutory law1, any person aggrieved by any order, decision or act made or
done by a Land Administrator2 may appeal to the High Court3, which jurisdiction is of an appellate nature
and not original4.
The distribution order5 must be drawn up forthwith by the Land Administrator and must lie in his office for
the period within which notice of appeal6 to the High Court may be given and, if notice of appeal has been
given, the distribution order must continue to lie in the office until the appeal has been withdrawn or
decided, and must, if necessary, be amended or redrawn to conform with the decision on appeal7. The
Land Administrator must then arrange for the order so far as it relates to land to be registered as may be
necessary8.
No appeal will lie from any such order, decision or act so far as the same is based on and in accordance
with a decision of the Ruler or of any other person or body in respect of a reference to Muslim law or
Malay custom or to native9 law or custom of Sabah10 or Sarawak or in accordance with the opinion and
directions of the High Court11.
The time limited for appeal12 and the procedure in every such appeal must, unless otherwise provided by
rules in which the Minister may make regulations to carry into effect the objects of the statutory law13,
conform to the time limited for, and the procedure in, a civil appeal from a Sessions Court with such
variations as may be necessary and in which the same fees will be payable14.
The Registrar15 at the registry in which the appeal is pending or intended to be filed must give such
directions as may be necessary to any party who applies in writing, in the event of the occurrence of any
doubt or difficulty on any point of procedure in any such appeal16.
The decision of the High Court upon any such appeal will be final and will not be subject to any further
appeal17, but the decisions of the Native Court in Sabah will be subject to appeal and revision as provided
in the constitution of that court18.
1 Ie the Small Estates (Distribution) Act 1955 (Act 98). See also s 29(5).
4 Ibrahim bin Saad v Haji Hamid bin Lebai Taib [1997] MLJU 189. In Shamsul Anuar Mohd Tahir v Mohsin Ahmad [2010] 3
CLJ 769, the court held that it is beyond doubt that the High Court's jurisdiction to set aside a distribution order is clearly
provided by the Small Estates (Distribution) Act 1955 (Act 98) s 29, and the nature of that jurisdiction is appellate and not
original. In the instant case, the plaintiffs, by choosing to initiate this proceeding by way of originating summons rather than
by way of appeal, had adopted the wrong procedure. Hence, this court had no jurisdiction to hear the plaintiffs' application.
5 For the meaning of 'distribution order' see [330.771] note 15.
6 See the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) reg 10 on the procedure of appeals.

Page 558
9 'Native' means a native of Sabah or a native of Sarawak: Small Estates (Distribution) Act 1955 s 2.
10 See the Small Estates (Distribution) Act 1955 s 19(1)(a). See also the Customary Tenure Enactment (Negeri Sembilan)
(FMS Cap 215) s 15. This enactment is a revised edition of the Laws Enactment 1932 which came into force on the 31
December 1932. As to the special provisions relating to Sabah see [330.797] and following.
11 See the Small Estates (Distribution) Act 1955 s 19(1)(b). See also s 29(1) proviso. In Gurpal Singh v Kananayer [1976] 2
MLJ 34, it was stated that s 19(1)(b) gives powers to the Collector (now known as Land Administrator) to refer any difficult
point of law to the High Court and in cases where there are collateral disputes, the Collector may defer the making of any
distribution order and is required to cause the disputes to be determined by the courts in cases of immovable property or any
right or interests therein.
12 Appeals to the High Court must be brought by giving notice of appeal in Form K2 set out in the Small Estates
(Distribution) Regulations 1955 (LN 495 of 1955) Sch 1: reg 10(1)(a). An appellant may appeal from the whole or any part of
a decision (which expression must, in these Regulations, mean any order, decision or act made or done by a Land
Administrator) and the notice of appeal must state whether the whole or part only, and what part, of the decision is appealed
against: reg 10(1)(b). Further, such notice must be filed in the Land Administrator's Office within 14 days from the day on
which the decision appealed was pronounced: see reg 10(1)(c). See further reg 10(2)-(7). See also Tijah bte Hassin lwn
Pentadbir Tanah Daerah, Alor Gajah [1994] 3 MLJ 424, where an appeal was not made within the stipulated time as
required and under reg 10(4), the plaintiff's rights were lost; Mamat bin Hassan v Siti Khatijah bte Awang Hamat [1996] 5
MLJ 529, where it was held the right of appeal is provided under the Small Estates (Distribution) Act 1955 s 29 and hence
the court is not empowered under the repealed RHC O 3 r 5(1) (now RC O 3 r 5(1)) to extend the time limited by any other
written law. See also Ibrahim bin Saad v Haji Hamid bin Lebai Taib [1997] MLJU 189. See further Pengarah Tanah dan
Galian Johor v Ungku Sulaiman bin Abd Majid [2010] 3 MLJ 601, CA .
13 See the Small Estates (Distribution) Act 1955 s 30.
15 For the meaning of 'Registrar' see [330.761] note 1.
17 Small Estates (Distribution) Act 1955 s 29(4). See Wee Fook Nian v Pendaftar Hakmilik Tanah, Melaka [1998] MLJU
480.
[330.773]
Caveat
The Land Administrator1 making a distribution order2 may sign and enter any caveat3 required to be
registered with the order, whether in his own or any other registry or office4.
2 For the meaning of 'distribution order' see [330.771] note 15. See also [330.775] and following.
3 The court's jurisdiction and powers will in so far as customary land is concerned vest in the Collector in relation to caveat
of customary land: Customary Tenure Enactment (Negeri Sembilan) (FMS Cap 215) s 14.
[330.774]
Subsequent applications
Where it becomes necessary to appoint a new trustee or a new administrator or to make any other or
further order or to withdraw a caveat, the party interested may make an application to the Land
Page 559
Administrator1, in the prescribed form2 or in another form which the Land Administrator may permit, and
thereupon the Land Administrator must investigate the matter and cause notice to be given to any other
party affected. If the matter is contentious, he must set it down for hearing in the same manner as a
petition for distribution3, and after the investigation or hearing he must make such order or to do any other
act as may be necessary to give effect to his decision, and if necessary must arrange for the order so far
as it relates to land to be registered as may be necessary4.
Where a minor beneficiary has attained majority, the Land Administrator may either withdraw the caveat to
enable the trustee to transfer the interest to the beneficiary or make an order transmitting the interest from
the trustee to the beneficiary as proprietor and in the latter case, an order withdrawing the caveat may be
incorporated in the same instrument as the transmission5.
The Land Administrator may for any cause he thinks fit, at any time either of his own motion or on the
application of any beneficiary or creditor, revoke any grant of administration made by him and may
likewise order any administrator to file accounts or to supply such other particulars concerning the
administration of the estate as he may require6.
2 An application must be in the Form P set out in the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) Sch 1
and filed with the Land Administrator. Notice where appropriate must be issued by the Land Administrator in Form S: reg 12.
Service and publication of the notice must be as provided in reg 11(2) and the application heard not less than 14 days from
the date of the notice: reg 12(2). Any order made upon the hearing of the application must be in Form T: reg 12(3).
3 For the meaning of 'petition of distribution' see [330.760] note 6.
5 Small Estates (Distribution) Act 1955 s 17(2). See Chua Eh Swee v Sew Chew Eng [1982] 1 MLJ 84, where the court held
that the Collector of Land Revenue's (now known as Land Administrator) decision for order for distribution under s 17(3) was
null and void, as under s 17(3) the Collector of Land Revenue could only hear cases where the grant of letters of
administration had been granted by an authority other than the High Court as under s 27(1), (2). See Wee Fook Nian v
Pendaftar Hakmilik Tanah, Melaka [1998] MLJU 480.

Page 560
Administration and Succession/(3) Small Estates/(3) Procedure for Petition/ D. Order for Distribution
D. ORDER FOR DISTRIBUTION
[330.775]
Order
At the conclusion of the hearing, the Land Administrator1 must by his order2 make provision for the
payment out of the estate of the estate duty3, if any, and of funeral expenses and debts of the deceased,
wherever arising, and for the repayment to any person of any fees paid by that person and may, if
necessary, direct the whole or such part of the estate as he may specify to be sold and the expenses,
debts, fees and duty to be paid from the proceeds of the sale and subject thereto must distribute the
residue of the estate according to their respective shares and interests among the beneficiaries but
subject to the powers of the Land Administrator in distributing the estate4. Where any movable property
comprised in a small estate has been administered by the Corporation, the Land Administrator may accept
any direction or declaration made by the Corporation in relation to the property5.
2 The distribution order must be made in Form E set out in the Small Estates (Distribution) Regulations 1955 (LN 495 of
1955) Sch 1: reg 7(1). See Mohd Arshad bin Salleh v Yasin bin Ibrahim [1991] 3 MLJ 197, where the Collector of Land
Revenue (now known as Land Administrator) granted under the then Small Estates (Distribution) Ordinance 1955 (Ord No
34 of 1955) to the plaintiff letters of administration.
3 Estate duty is not payable in the case of a person dying as from 1 November 1991 in Malaysia, but estate duty as required
by statutory law as existing before 1 November 1991 would apply to the estate of any person dying before the coming into
force of the repeal of estate duty as if the appeal had not been made: see the Finance Act 1992 (Act 476) s 46 which
repealed the provisions of the Estate Duty Enactment 1941 (FMS 7/1941); Estate Duty Ordinance of Sabah (Sabah Cap 42);
Estate Duty Ordinance of Sarawak (Sarawak Cap 29); Finance (Estate Duty) Act 1965 (Act 29 of 1965); Finance (Estate
Duty) Act 1971 (Act 38); Finance (Estate Duty) Act 1979 (Act 219) and the Finance (Estate Duty) Act 1980 (Act 224) with
effect from 1 November 1991.
4 Small Estates (Distribution) Act 1955 (Act 98) s 13(1). See also Mamat bin Hassan v Siti Khatijah bte Awang Hamat [1996]
5 MLJ 529. As to the powers of the Land Administrator in distributing the estate see s 15, and [330.782] and following.
5 Small Estates (Distribution) Act 1955 s 13A (as inserted by the Small Estates (Distribution) (Amendment) Act 2008 s 9).
[330.776]
Minority interest
The Land Administrator1 must by his order direct the share of any infant beneficiary in any immovable
property to be registered in the name of a suitable person as trustee and must enter a caveat2 to protect
his interest during minority3.
2 The entry of a caveat must be in Form HH set out in the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955)
Sch 1: reg 8(2).

Page 561
[330.777]
Trust property
If the Land Administrator1 finds that the deceased was a trustee for any person of any land held in the
name of the deceased though not registered as such, he must, unless in any case he thinks it proper to
refer to the court, order the trust property to be transmitted to a new trustee or to the beneficiary as he
thinks fit, but without prejudice to any registered rights or interests in the land of any creditor of the
deceased or any person deriving title through the deceased2.
[330.778]
Grant of letters of administration
If the nature of the case so requires, the Land Administrator1 must instead of or in addition to making a
distribution order2, grant letters of administration3 to such person or persons as he thinks fit, subject to
such security as he may require and may in his discretion dispense with security4. The letters of
administration will be subject to such limitations as the Land Administrator may think fit to specify in the
grant5.
If it appears that the estate is or is likely to be insolvent, the Land Administrator must grant letters of
administration to some fit person on behalf of the general body of creditors or else order the estate to be
administered in bankruptcy by the Director General of Insolvency6.
3 Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) reg 7(2); see also [330.760] note 2.
6 Small Estates (Distribution) Act 1955 s 13(7). See [300.254] note 8.
[330.779]
Claim of purchaser
If the Land Administrator1 finds that any person has proved to be a purchaser2 of any land registered in
the name of the deceased, he must by his order, transmit the land to the purchaser, subject to such
conditions as to the payment of any outstanding balance of the purchase money or otherwise as he may
think fit to impose3.
If in the opinion of the Land Administrator any person claiming to be a purchaser of any land registered in
the name of the deceased is not such a purchaser but is entitled to any sum as compensation or relief out
of the estate of the deceased, he must record a finding to that effect and must provide in the order for the
Page 562
payment of that sum to that person as a debt of the deceased4.
[330.780]
Collateral dispute
A collateral dispute1 means a dispute as to whether:
(1) any property movable or immovable or any right or interest in any such property forms part
of the estate of the deceased;
(2) any person is entitled beneficially to any property movable or immovable or any right or
interest in any such property which the deceased at the time of his death held or was entitled
to hold as a trustee and not beneficially;
(3) any debt or liquidated sum in money is payable to any person claiming the same out of the
assets of the deceased or any debt or liquidated sum in money is due or payable by any
person to the estate of the deceased; and
(4) any share or any right or interest in any share of a beneficiary in the estate of the deceased
has been assigned to or vested in any other person, whether a beneficiary or not2.
1 See Chu Chu Lock v Chu Mek Chuan [1977] 1 MLJ 119, where the court held that the plaintiff could not seek to bring an
action purportedly under the Collector's (now known as Land Administrator) direction because he was not a party to the suit
earlier and, therefore, had not locus standi.
[330.781]
Determination of collateral disputes
If in the course of the hearing1 it is certified by the Land Administrator2 to be necessary or desirable in the
interests of justice that any collateral dispute3 should be decided before a distribution order4 is made, the
Land Administrator may defer the making of any distribution order in respect of the estate or of that part of
the estate which in his opinion is or may be affected directly or indirectly by the determination of that
dispute and must cause the dispute to be determined in accordance with statutory requirements5 in the
following manner:
(1) the Land Administrator must, after ensuring that all necessary parties are before him or have
had sufficient opportunity to attend, proceed to hear and determine the dispute6 and may
make such order thereon as may be just7;
(2) the Land Administrator must apply to the hearing such modifications as may be necessary8.
Any such order made by a Land Administrator will have the same force and effect by such order made by
Page 563
him9 and will be enforceable in the same manner as if it had been made by a court, but there will be no
appeal from such an order10 except as provided under the Act11.
1 As to the hearing of the petition for distribution see [330.771].
3 See eg Chu Chu Lock v Chu Mek Chuan [1977] 1 MLJ 119 (where the dispute could not be resolved by the Collector (now
known as Land Administrator) and the parties were asked pursuant to the then Small Estates (Distribution) Ordinance 1955
(Ord No 34 of 1955) s 14 to take the matter to court). As to collateral disputes see [330.780].
4 See Gurpal Singh v Kananayer [1976] 2 MLJ 34 (where the court held that in the event there are collateral disputes, the
Collector (now known as Land Administrator) may defer the making of any distribution order and is required to cause the
disputes to be determined by the courts in cases of immovable property or any right or interests therein). For the meaning of
'distribution order' see [330.771] note 15.
5 Ie pursuant to the Small Estates (Distribution) Act 1955 (Act 98): see s 14(1).
6 Where in the course of a distribution suit it becomes evident that a collateral dispute should be decided, the Land
Administrator must issue a certificate in Form L set out in the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955)
Sch 1 and file the same in the Distribution suit: reg 11.
8 See the Small Estates (Distribution) Act 1955 s 14(8).
11 Ie under the Small Estates (Distribution) Act 1955 s 29. See Fatimah binti Mat Akir v Sharifah binti Haji Ahmad [1977] 1
MLJ 106, FC (where the court held that the proper course for the appellants was to have appealed against the Settlement
Officer's Order, which they did not do, and therefore the application was rightly dismissed). As to appeal see [330.772].
Page 564
Administration and Succession/(3) Small Estates/(3) Procedure for Petition/ E. Powers of the Land
Administrator in Distribution/ (i) Distribution
E. POWERS OF THE LAND ADMINISTRATOR IN DISTRIBUTION
(i) Distribution
[330.782]
Beneficiaries of full age
Where the Land Administrator1 is satisfied that all the beneficiaries2 of the estate being of full age and
capacity have agreed between themselves as to the manner in which the estate should be distributed,
the Land Administrator may, after recording in the distribution order3 the terms of the agreement and the
assent4 of the parties, distribute the estate in the manner provided for by the agreement, unless it
appears to the Land Administrator to be unjust or inequitable to do so5.
2 Re Mamat bin Dat San, Mek Som v Awang bin Senik [1972] 1 MLJ 59, FC (where an appeal was sought for a
declaration that the order for distribution of an estate made by the Collector (now known as Land Administrator) was null
and void on the basis that a share in the estate was given to a non-beneficiary and the consent of one of the beneficiaries
who was of unsound mind having been given by his guardian appointed by the Collector was dismissed as the order for
distribution was made by consent and hence binding on the beneficiaries).
4 An assent would only be required if no guardian had been appointed for the beneficiary: see Re Mamat bin Dat San,
Mek Som v Awang bin Senik [1972] 1 MLJ 59, FC .
[330.783]
Beneficiaries not of full age
Where any such agreement has been entered into by all the beneficiaries who are of full age and
capacity, the Land Administrator1 may, if in his opinion it is in the interests of any other beneficiary who is
a minor or a person not of full capacity to do so, assent to the agreement on behalf of that minor or
person and may, after recording the terms of the agreement and the assent of the parties thereto and of
his own assent on the part of the minor or person, distribute the estate in the manner provided for by the
agreement2.

Page 565
Administrator in Distribution/ (ii) Allocation
(ii) Allocation
[330.784]
Allocation of share in land
Where two or more beneficiaries are entitled to share in any land comprised in the estate, the Land
Administrator1 may, at his discretion, having regard to the interests of those concerned and the interest
of good cultivation:
(1) allocate separate lots to individual beneficiaries;

(2) allocate separate lots to two or more beneficiaries as co-proprietors or tenants in common
in undivided shares; or
(3) subject to any other written law restricting the sub-division of land, order any lot or lots to
be sub-divided by survey into parcels proportionate to the shares of the beneficiaries
concerned, fixing a time within which they are to deposit the appropriate survey fees in the
Land Office and providing that in default of such a deposit the land be registered in the
names of those beneficiaries as co-proprietors or tenants in common in undivided shares2.
[330.785]
Allocation of share in land to prevent excessive sub-division
The Land Administrator1 may, at his discretion, in order to prevent the excessive sub-division of land or
the holding of small lots of land in common by numerous persons or in complicated fractional interests:
(1) where the share of a beneficiary is small, order the land or any part thereof allocated to any
other beneficiary or a specified interest therein to be charged to the beneficiary for amount
of his share, together with interest at such rate as may be just, not exceeding 5 per cent, in
lieu of allocating to him a proprietary interest2;
(2) where the value of any interest or share in land or lot allocated to a beneficiary is less than
the value of the share in the estate to which the beneficiary is entitled, direct that the
difference in value be made up to him in money by the other beneficiaries in such
proportion as is equitable and may order, if necessary, that any such payment and interest
thereon at such rate as may be just, not exceeding 5 per cent, be secured by a charge
upon any share or shares of those other beneficiaries3; and
(3) order that the undivided distributive share of any beneficiary in any land or lot be allocated
to another beneficiary and that such other beneficiary pay to the first-mentioned beneficiary
such sum of money as may be determined by the Land Administrator to be the value of
such undivided distributive share4; however, no such order may be made unless the Land
Administrator has first informed the beneficiaries concerned of the terms of his proposed
Page 566
order and the second-mentioned beneficiary has deposited with the Land Administrator the
sum of money proposed to be determined by the Land Administrator as the value of the
distributive share of the first-mentioned beneficiary5;
(4) order the land or any part of it to be sold in such manner as may be prescribed6; or
(5) order the land or any part of it to be sold by tender7 among the beneficiaries in such
manner as may prescribed, but subject to a reserve price determined by the Land
Administrator which may not be less than the market value of the land, or part of the land,
as the case may be, at the date of the tender8.
2 Small Estates (Distribution) Act 1955 (Act 98) s 15(4)(a). The court cannot create a proprietary interest in land tenure
arising from a licence within a family relationship: see Amar Singh a/l Sundar Singh v Jivanjit Kaur d/o Sohan Singh [2010]
6 MLJ 771, CA .
3 Small Estates (Distribution) Act 1955 s 15(4)(b).
4 Small Estates (Distribution) Act 1955 s 15(4)(bb).
5 Small Estates (Distribution) Act 1955 s 15(4)(bb) proviso.
6 Small Estates (Distribution) Act 1955 s 15(4)(c).
7 Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) reg 16. See also reg 16(3), Sch 3 on the procedure as to
sale by public auction or by tender among beneficiaries.
8 Small Estates (Distribution) Act 1955 s 15(4)(d).

Page 567
Administrator in Distribution/ (iii) Other Considerations of the Land Administrator
(iii) Other Considerations of the Land Administrator
[330.786]
Matters to be considered in distributing estate
In determining whether to make a distribution order1 in accordance with any agreement between the
beneficiaries or in settling the terms of any distribution order providing for the distribution of land, the
Land Administrator2 must have regard to the following considerations3:
(1) dividing land into several lots in several names may seriously diminish the value of the
estate as a whole;
(2) the real value of small shares, especially when represented by complicated fractions, is
less than their proportionate values;
(3) it is not conducive to good cultivation or to peace in a family for persons who may have
conflicting interests to be undivided co-proprietors of land;
(4) it is greatly to the advantage of an infant that his co-proprietors should be those mostly
nearly related to him; and
(5) valuations are necessarily estimates and are only approximately correct; it is therefore
unnecessary that the estimated value of a lot should be the precise amount of a
beneficiary's mathematical share; it is sufficient if the estimated value of a lot substantially
corresponds to the beneficiary's calculated share4.
Where two or more beneficiaries are entitled to a share in any movable property comprised in the estate
the Land Administrator may, at his discretion, having regard to the interest of those concerned, order the
property to be sold in such manner as may be prescribed5.
1 For the meaning of the 'distribution order' see [330.771] note 15.
3 See the Small Estates (Distribution) Act 1955 (Act 98) s 15(5).
4 Small Estates (Distribution) Act 1955 s 15(5), Sch 1.
5 Small Estates (Distribution) Act 1955 s 15(5A) (as inserted by the Small Estates (Distribution) (Amendment) Act 2008
(Act A1331) s 10(a)).
[330.787]
Public Trustee
Where there is a sum of money in the possession of the Land Administrator1 which is payable to any
person under or by virtue of a distribution order2, the Land Administrator must deposit such sum of
money with the Corporation if:
Page 568
(1) the whereabouts of such person are not known;

(2) such person refuses to accept payment of such sum of money;
(3) such person lacks legal capacity; or
(4) for any other reason it is not practicable to pay such sum of money to such person3.
Further, the Corporation must hold such sum deposited with him as trustee for the person entitled to it,
and may apply the same for the benefit of that person, or may pay the said sum to that person if he
makes a claim in writing and the Corporation is satisfied as to his identity, entitlement, and legal capacity
to receive it4.
3 Small Estates (Distribution) Act 1955 (Act 98) s 16(3). Note that the original provision which used the word 'Public
Trustee' is now construed as 'Corporation': see Public Trust Corporation Act 1995 (Act 532) s 43(3).
[330.788]
Duty of settlement officer and penghulu
Where a proprietor of any land has died and no proceedings, to the knowledge of a Settlement Officer of
the district, or the penghulu1 of the locality, in which the proprietor's land is situated, have within six
months of the date of death been taken to obtain a grant of probate or letters of administration or for
distribution of the estate of the deceased, the said Settlement Officer or the said penghulu must report
the matter to the Land Administrator2 and the Land Administrator may thereupon direct the Settlement
Officer or the penghulu, or some other Settlement Officer of the district or some other penghulu, to lodge
a petition for distribution3 of the estate, unless he has reason to believe that the land was not part of a
small estate4, in which case he must report the matter to the Corporation5.
The penghulu will not be required to pay any fee6 upon the lodging of any petition or on any consequent
proceedings but at the conclusion of the hearing7, the Land Administrator must assess the fees that
would have been payable if the petition had been lodged by some person other than the Settlement
Officer or penghulu and must in his distribution order direct that they must be paid out of the estate8.
1 For the meaning of 'Penghulu' see [330.762] note 3.
5 Small Estates (Distribution) Act 1955 (Act 98) s 18(1). Note that the original provision which used the word 'Public
Trustee' is now construed as 'Corporation': see Public Trust Corporation Act 1995 (Act 532) s 43(3).
6 See the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) reg 18, Sch 2 on the prescribed fees.
7 As to the hearing of the petition for distribution see [330.771].

Page 569
[330.789]
Reference on point of law or custom
If any difficult point of law or custom arises in any proceedings under the Small Estates (Distribution) Act
19551, the Land Administrator2 may:
(1) if the question relates to Muslim law3 or Malay custom or to native4 law or custom of Sabah
or Sarawak, refer5 the matter for decision to the Ruler of State in which his district is
situated or to such other person or body of persons as the Ruler may direct6; or
(2) if the question relates to any other matter, may state a case for the opinion and directions
of the High Court7.
Every such reference and statement of case must be in writing and must contain a statement of the facts
on which an opinion or decision is required, and the Land Administrator must give effect to any opinion,
decision or directions thereby obtained8. The High Court however, may not give any opinion upon any
question referred to it, unless all those person interested in the proceedings who in the opinion of the
High Court are likely to be affected by the opinion have had an opportunity to appear and be heard by
the Court either in person or by advocate, and the costs of any such hearing will be borne by such
persons or by the estate and in such proportion as the court may direct9.
1 Ie under the Small Estates (Distribution) Act 1955 (Act 98).
3 Fatimah binti Mat Akir v Sharifah binti Haji Ahmad [1977] 1 MLJ 106, FC , where the parties at a hearing agreed to the
distribution being made in accordance with Muslim law. See generally [400] SYARIAH LAW (2006 Reissue).
4 For the meaning of 'native' see [330.772] note 9.
5 A reference to the Ruler or the High Court under the Small Estates (Distribution) Act 1955 s 19 must be made in Form J
set out in the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) Sch 1, modified to suit the circumstances of
the case and must be forwarded accordingly to the Clerk of Council in respect of the Ruler or to the Assistant Registrar in
the appropriate Registry of the High Court: reg 9. See also Lau Kim Long v Ong Kwai Chan [2002] 5 MLJ 744.
6 Small Estates (Distribution) Act 1955 s 19(1)(a). As to the special provisions relating to Sabah see [330.797] and
following.
7 Small Estates (Distribution) Act 1955 s 19(1)(b). Where any question is referred to the High Court under s 19, the
reference may be heard and disposed of by a Judge in Chambers: s 19(3). For the meaning of 'High Court' see [330.760]
note 1.
[330.790]
'Baitulmal'
Where there is in force any written law relating to 'baitulmal'1, the Land Administrator2 must before
distributing any part of the estate of a deceased Muslim satisfy himself that any share of the estate which
is due to the 'baitulmal' has been duly paid3 or proper provision made for the payment4.
1 Under the Muslim Law Enactment 1939, when a Muslim dies leaving no issue, his estate will vest with 'Baitulmal'. See eg
Haji Junus v Chik [1964] MLJ 343.

Page 570
3 See Itam binti Saad v Chik binti Abdullah [1974] 2 MLJ 53, where 7/16 share of the land of the deceased according to
the Syariah law of distribution went to 'baitulmal'; Lee Seng Hock v Fatimah bte Zain [1996] 3 MLJ 665, CA , where the
appellant offered to purchase 'baitulmal's' share of land but the sale never took place as the appellant considered the value
of RM153,000 asked for by the Religious Department to be exorbitant and prohibitive.
4 Small Estates (Distribution) Act 1955 (Act 98) s 13(1) proviso.

Page 571
Administration and Succession/(3) Small Estates/(3) Procedure for Petition/ F. Special Provisions Relating to
Negeri Sembilan and Sabah/ (i) Tribal Estates of Negeri Sembilan and Small Estates of Sabah
F. SPECIAL PROVISIONS RELATING TO NEGERI SEMBILAN AND SABAH
(i) Tribal Estates of Negeri Sembilan and Small Estates of Sabah
[330.791]
Proceedings
Pursuant to the Small Estates (Distribution) Act 19551, if at any stage of any proceedings in the High
Court2 relating to the estate of a deceased person it appears that:
(1) the deceased was a member of a tribe3 within the special provisions relating to Negeri
Sembilan4 or that any part of the estate was property affected by a tribal custom5 within the
scope thereto; or
(2) the deceased at the time of his death was native of Sabah6,
the proceedings must be stayed and the matter must be referred to the Director General of Lands and
Mines7 and the proceedings may not be continued in the High Court unless and until the Director
General of Lands and Mines has certified in writing under his hand that the estate is not, or is not
deemed to be, a small estate8 under the Act9.
3 The list of tribes under the Customary Tenure Enactment (Negeri Sembilan) (FMS Cap 215) Sch B are as follows: (1)
'Biduanda' ('Waris and/or Dagang'); (2) 'Batu Hampar' (excluding the division known as 'Ayer Kaki pada Yam Tuan'); (3)
'Sri Melenggang'; (4) 'Tanah Datar' (excluding the divisions known as 'Lengkongan Yam Tuan'); (5) 'Sri Lemak' (excluding
the divisions known as 'Lengkongan Yam Tuan'); (6) 'Mungkal'; (7) 'Tiga Batu' (excluding the divisions known as
'Lengkongan Yam Tuan'); (8) 'Tiga Nenek'; (9) 'Paiah Kumboh'; (10) 'Anak Malaka'; (11) 'Anak Achih'; and (12) 'Batu
Belang'.
4 Ie under the Small Estates (Distribution) Act 1955 (Act 98) Pt III (ss 20-25). See also [330.792] and following.
5 'Custom' in the Customary Tenure Enactment (Negeri Sembilan) means the customary land law of Malays resident in the
districts of Kuala Pilah, Tampin and Jelebu, who are members of one of the tribes mentioned in Sch B: s 2.
6 Small Estates (Distribution) Act 1955 Pt IV (ss 26-26D). 'Native of Sabah' has the meaning assigned to the word 'native'
in the Interpretation (Definition of Native) Ordinance (Sabah) (Cap 64): Small Estates (Distribution) Act 1955. See also
7 For the meaning of 'Director General of Lands and Mines' see [330.759] note 6.
9 Small Estates (Distribution) Act 1955 s 7(2). Any reference to the Director General of Lands and Mines under the
provision s 7(2) and the certificate of the Director General thereon must be in Form W and Form X respectively set out in
the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) Sch 1: reg 14(2).
Page 572
Negeri Sembilan and Sabah/ (ii) Negeri Sembilan
(ii) Negeri Sembilan
[330.792]
Special provisions relating to Negeri Sembilan
Where the estate is in respect of customary land as defined under the Customary Tenure Enactment1, its
distribution is to be carried out in accordance with the Enactment2 and not under the Small Estates
(Distribution) Act 19553.
The property (other than customary estate4) of the estate of a deceased person who is one of the
members of a tribe5 as stated in the Customary Tenure Enactment, comprised in the estate situated in
the districts of Jelebu, Kuala Pilah, Rembau and Tampin in the State of Negeri Sembilan, will be dealt
with in accordance with the Small Estates Distribution Act 19556.
1 Ie the Customary Tenure Enactment (Negeri Sembilan) (FMS Cap 215), which defines 'customary land' as land held by
any entry in the mukim register which has been endorsed under the provisions of s 4(i), (ii): see s 2. See Indun binti Mat
Zin v Haji Ismail bin Nusa, Abdullah bin Suhor, Midut binte Haji Bali, Mohamed Noor [1939] MLJ 79. See also Haji Hussin
bin Haji Matsom v Maheran binti Haji Hohamed Tahir [1946] MLJ 116, where it was held that notwithstanding a finding by
the Collector under the Enactment that the land was not customary, it was still open to the Collector to distribute the land in
accordance with custom.
2 Where the deceased is a member of a tribe, the force of law applicable to the deceased is always the 'adat': see Anyam
v Intan [1948] Supp MLJ 13, where it was held that the absence of the endorsement of the words 'customary land' on the
title deed did not by itself prove that the land was not 'occupied subject to custom' or that it was ancestral and the
declaration of separate property, 'harta dapatan' and 'harta pembawa' doesn't affect the classification of such property but
is a matter of evidence only and if there is sufficient other evidence that the property is in fact 'harta pembawa' or 'harta
dapatan', it is not necessary to prove that a declaration was made.
3 Ie the Small Estates (Distribution) Act 1955 (Act 98): see s 21. See also the Customary Tenure Enactment s 6 which
stipulates that no grant must be issued for any customary land.
4 'Customary estate' means and includes customary land and charges and leases of customary land, which are registered
in the name of a deceased: Customary Tenure Enactment (Negeri Sembilan) s 2.
5 In this part, 'tribe' means one of the tribes specified in the Customary Tenure Enactment Sch B: see the Small Estates
(Distribution) Act 1955 s 20. As to the list of tribes see [330.791] note 3.
6 Small Estates (Distribution) Act 1955 s 20, which is subject to the provisions of Pt II (ss 3-19).
[330.793]
All tribal estates to be 'small'
The estate of any deceased person who was at the time of his death a member of a tribe1 will be
deemed to be a small estate2, whatever its total value, and every such person will be deemed to have
died intestate in respect of that estate3.
1 As to the list of tribes see [330.791] note 3.

Page 573
3 Small Estates (Distribution) Act 1955 (Act 98) s 22.
[330.794]
Jurisdiction
The Land Administrator1 of the district in which is located the tribe or section of a tribe2 of which the
deceased was a member will have exclusive jurisdiction over the estate3. However, if the value of the
estate exceeds RM5,000, the hearing of any petition for distribution4 must be before one or more officers
nominated for that purpose by the Menteri Besar of the State of Negeri Sembilan and the officer or
officers will have all the powers of a Land Administrator having jurisdiction over the estate5.
Where the deceased has left customary estate6 in addition to other property, the Land Administrator or
other officer or officers nominated must, wherever practicable, fix the hearing of the application under the
Customary Tenure Enactment7 for the same time and place as the hearing under the Small Estates
(Distribution) Act 19558.
5 Small Estates (Distribution) Act 1955 s 23(1) proviso. As to the powers of the Land Administrator in distribution see
6 For the meaning of 'customary estate' see [330.792] note 4.
7 Ie under the Customary Tenure Enactment (Negeri Sembilan) (FMS Cap 215) s 10.
8 Ie under the Small Estates (Distribution) Act 1955 (Act 98) s 12: see s 23(2).
[330.795]
Principles of distribution
The Land Administrator1, which expression will be deemed to include the officer or officers nominated
under the Small Estates (Distribution) Act 19552, must apply the following principles in making any
distribution order3:
(1) if any land appears to be ancestral customary land, though not registered as such, it must
be transmitted to the customary heiress, subject if necessary to life occupancy4;
(2) where any property is found as a fact to be 'harta pembawa'5 or 'harta dapatan'6, it may be
transmitted to the customary heiress of the deceased subject to the right of any other
person to a share in or charge over that property according to the principle of 'untung',
where applicable, and on registration of the order, the Land Administrator may, if
necessary, add the words 'customary land'7 to any title affected but he will not be bound to
do so8;
(3) where any property is found as a fact to be 'harta carian bujang' or 'harta carian laki bini'9, it
may be transmitted according to the custom of the 'luak'10 and on registration of the order,
the Land Administrator may, if necessary, add the words 'customary land' to any title
Page 574
affected11 but he will not be bound to do so12;

(4) the Land Administrator must give effect to customary adoptions where they are
satisfactorily proved13;
(5) in all cases, regard must be had to partial distribution of property made or agreed upon in
the lifetime of the deceased and to the existence of any property which is affected by any
such distribution or agreement through not part of the estate14;
(6) wherever practicable, the Land Administrator must avoid transmitting undivided shares in
any one lot to members of different tribes15; and
(7) where funeral expenses are by the custom chargeable on specific property and the party
on whom that property ought to devolve has not paid them, the Land Administrator may
require the party to pay the funeral expenses as a condition of inheriting that property or
may, by the order, charge that property with the amount of the funeral expenses16.
2 Ie under the Small Estates (Distribution) Act 1955 (Act 98) s 23: see s 24
4 Small Estates (Distribution) Act 1955 s 24(a).
5 Ie the property brought by the deceased to the tribe of his wife upon marriage.
6 Ie property acquired by the wife before her marriage.
7 See [330.792] note 1. See also Indun binti Mat Zin v Haji Ismail bin Nusa, Abdullah bin Suhor, Midut binte Haji Bali,
Mohamed Noor [1939] MLJ 79; Hajjah Sitam v Hassan [1973] 2 MLJ 110, where the dealings contemplated in the
Customary Tenure Enactment (Negeri Sembilan) (FMS Cap 215) s 5 must be of the nature of transfer, charge or
transmission and does not include a suit for ejectment or the recovery of immovable property.
8 Small Estates (Distribution) Act 1955 s 24(b).
9 That is property acquired during coverture. See Abas v Hajjah Saelan [1967] 1 MLJ 212, on the Customary Law of
Rembau, where it was necessary to establish the category of the property as on this depends the question whether it
reverts to the beneficiaries and is to the distributed according to the rules of ancestral property in the case of 'pembawa', or
is transmitted to the widow and children of the marriage, if it is 'charian laki bini'. It was held that the Collector (now known
as Land Administrator) should have ascertained the date of the marriage of the respondent to the deceased in order to
decide whether the property was a 'harta pembawa' or 'charian laki bini', and as the custom differed from state to state and
district to district, the Collector should have ascertained what was the custom applying the custom in Rembau. Further,
there should be an order remitting the case to be heard before another Collector. Note that since 1966, tribal lands have
been protected under the Small Estates Legislation and by designation as mukim land under the National Land Code (Act
No 56 of 1965) and the National Land Code (Penang and Malacca Titles) Act 1963 (Act 518).
10 See Dato Menteri Othman bin Baginda v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29, FC , on the issue of
'luak'.
11 Re Haji Mansur bin Duseh Alias Matso bin Duseh (decd) [1940] MLJ 110, where it was held that the Collector (now
known as Land Administrator) is not precluded under the Customary Tenure Enactment s 25 from holding an enquiry or
from making an endorsement under the said Enactment in the case of land of which the registered owner is dead and in
respect of which the Mukim Register does not bear an endorsement; Sali binti Haji Salleh v Achik Alias Bachik bin Enot
[1941] MLJ 14, where the court held that the Collector (now known as Land Administrator) should have applied the rule
and endorsed the title 'customary land' under the Enactment s 4(i), where the local rule applicable to the district in question
having been sufficiently proved as a customary rule; Haji Hussin bin Haji Matsom v Maheran binti Haji Hohamed Tahir
[1946] MLJ 116, where the Collector (now known as Land Administrator) having transmitted the acquired property of the
deceased in accordance to the personal law of the deceased, which was Mohammedan law as varied by the 'adat' or
customary law, the Collector was bound to hold an enquiry under s 4 of the Enactment and endorse the Entry in and
Extract from the Mukim Register, 'customary land'.
12 Small Estates (Distribution) Act 1955 s 24(c).
13 Small Estates (Distribution) Act 1955 s 24(d).
14 Small Estates (Distribution) Act 1955 s 24(e).
15 Small Estates (Distribution) Act 1955 s 24(f). As to the list of tribes see [330.791] note 3.
Page 575
16 Small Estates (Distribution) Act 1955 s 24(g).
[330.796]
Appeals
Any appeal under the Small Estates (Distribution) Act 19551 which relates to customary land2 or to the
estate of a deceased member of a tribe3 must be heard by an Appeal Committee appointed by the Ruler,
instead of by the High Court4, and subject to confirmation by the Ruler5 the report of the Committee will
be final6.
Unless and until an Appeal Committee is appointed, any such appeal must be heard in the same manner
as an appeal under the Customary Tenure Enactment7.
2 See [330.792] note 1.
5 The Ruler may make rules of procedure and prescribe fees for such appeals: Small Estates (Distribution) Act 1955 s
25(1). See also the Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) reg 18, Sch 2.
6 Small Estates (Distribution) Act 1955 s 25(1). See also the Customary Tenure Enactment (Negeri Sembilan) (FMS Cap
215) s 15.
7 Ie under the Customary Tenure Enactment s 15: see the Small Estates (Distribution) Act 1955 s 25(2).
Page 576
Negeri Sembilan and Sabah/ (iii) Sabah
(iii) Sabah
[330.797]
Certain native estates to be 'small'
The estate of any deceased person who at the time of his death was a native of Sabah1 will, if it consists
of immovable property all of which is held under Native Title2, whatever its value, and movable property
(if any) not exceeding RM20,000 in value, be deemed to be a small estate3.
1 For the meaning of 'native of Sabah' see [330.791] note 6.
2 'Native Title' has the meaning assigned thereto in the Land Ordinance of Sabah: Small Estates (Distribution) Act 1955
(Act 98) s 2.
3 Small Estates (Distribution) Act 1955 s 26A(1). As to the meaning of small estates see [330.757].
[330.798]
Small estates of natives of Sabah
When a petition for distribution1 relates to an estate of a native of Sabah2 which is deemed to be small
estate3 under the Small Estates (Distribution) Act 19554, the Land Administrator5 must refer the petition
to the appropriate Native Court constituted under the Native Court Ordinance of Sabah6, unless in his
opinion for any reason it should be dealt with under the Probate and Administration Act 19597, in which
event the Land Administrator must send the record of the case and his findings to the High Court8.
4 Ie under the Small Estates (Distribution) Act 1955 (Act 98) s 26A(1). See also [330.797].
6 Ie the Native Court Ordinance of Sabah (No 3 of 1992).
7 Ie the Probate and Administration Act 1959 (Act 97).
8 Small Estates (Distribution) Act 1955 s 26B. For the meaning of 'High Court' see [330.760] note 1.
[330.799]
Procedure of Native Courts in Sabah

Page 577
When a petition has been referred to the Native Court, the court must:
(1) as far as possible, follow the procedure prescribed in the Small Estates (Distribution) Act
19551;
(2) exercise exclusively, in lieu of the Land Administrator2, the authority granted to the Land
Administrator;
(3) make a distribution order3 having regard to the Wills Ordinance of Sabah4 and the law or
custom having the force of law applicable to the deceased; and
(4) the decision of the Native Court must be forwarded to the Land Administrator, who must
arrange for the order of that Court so far as it related to any interest in land to be registered
as may be necessary5.
4 Ie under the Wills Ordinance of Sabah (Cap 158) s 1(2), (3).
5 Small Estates (Distribution) Act 1955 s 26C.
[330.800]
Sale of native land in Sabah
Land registered in the name of a deceased native of Sabah1 may be sold by order of the Native Court to
pay the debts of the deceased or to satisfy the claim of a beneficiary who is not a native, but the bidding
in the case of land held under the Land Ordinance of Sabah2 is restricted to natives3.
2 Ie under the Land Ordinance of Sabah (Cap 68) Pt IV (ss 64-86).
3 Small Estates (Distribution) Act 1955 (Act 98) s 26D. For the meaning of 'native' see [330.772] note 9.
Page 578
Negeri Sembilan and Sabah/ (iv) Special Provisions for Malacca and Penang
(iv) Special Provisions for Malacca and Penang
[330.801]
Distribution order
Without prejudice to the provision under the Small Estates (Distribution) Act 19551 in respect of estates
which are partly administered, the Land Administrator2 may make a distribution order3 in respect of a
small estate4 of a person who died at any time before the date when the Act came into force in relation to
the States of Penang and Malacca5, but not if the estate has been or is being administered under the law
in force before that date for the administration of estates6.
1 Ie under the Small Estates (Distribution) Act 1955 (Act 98) s 27. As to estates partly administered see [330.803].
5 The Malacca Lands Customary Rights Ordinance (Cap 125) had been repealed by the National Land Code (Penang and
Malacca Titles) Act 1963 (Act 518) s 96: see Tijah bte Hassin lwn Pentadbir Tanah Daerah, Alor Gajah [1994] 3 MLJ 424.
6 Small Estates (Distribution) Act 1955 s 34, Sch 3 para 2.
[330.802]
Holding of small estate
Where the Land Administrator1 is satisfied in respect of a holding2 which is or forms part of a small
estate3 that:
(1) the person registered in the Interim Register4 as the proprietor of the holding is dead; and
(2) some other person would be entitled (or if that other person is dead, would have been
entitled while he was alive) to be registered as proprietor of the holding, but for a failure or
failures by any person or persons, including that other person, to obtain probate or letters
of administration on the death of the person registered as proprietor or any subsequent
occupier or occupiers,
he may make such distribution orders5 as are necessary in his opinion to vest the holding in that other
person6.
Where two or more orders are made by the Land Administrator in respect of a single holding, they will be
regarded as a single order for the purpose of assessing any duty or fee payable under any written law7
on the making of a distribution order under the Small Estates (Distribution) Act 19558.
2 The word 'holding' in the National Land Code (Penang and Malacca Titles) Act 1963 (Act 518) s 4(1) means a piece of
Page 579
land (not being mining land or State land) duly surveyed and on the appointed day being delineated on a plan certified by
or on behalf of the Director of Survey as a lot or lots delimited, except as otherwise provided in ss 29 and 30 by right-line
boundaries.
4 'Interim Register' means the register prepared and maintained under the National Land Code (Penang and Malacca
Titles) Act 1963: s 4(1).
6 Small Estates (Distribution) Act 1955 (Act 98) s 34, Sch 3 para 3(1).
7 Small Estates (Distribution) Regulations 1955 (LN 495 of 1955) reg 18, Sch 2.
8 Ie under the Small Estates (Distribution) Act 1955: see Sch 3 para 3(2).
Page 580
Negeri Sembilan and Sabah/ (v) Miscellaneous
(v) Miscellaneous
[330.803]
Estates partly administered
Where, before the coming into force of the Small Estates Distribution Act 19551:
(1) letters of administration have been granted by the High Court2 and the estate has not been
fully administered, any further application relating to the same estate may be made to the
High Court, whether the estate is, or has become, a small estate3 within the meaning of the
Act or not4;
(2) a grant of probate or letters of administration had been made by any authority other than
the High Court, and the estate has not been fully administered, any further application
relating to the same estate may be made to a Judge or Registrar5 of the High Court in the
State6 in which the grant was made, and thereupon the Registrar must call for the file of the
former proceedings which may be continued as though they had been commenced in his
registry; provided that if for any reason, in the opinion of the Judge or the Registrar, the
proceedings cannot conveniently be so continued, the Judge or Registrar may direct that a
new petition be filed in the High Court or that a petition for distribution7 be lodged with a
Land Administrator8 pursuant to the Act9;
(3) an application for distribution or for a grant of letters of administration of a small estate
under any written law repealed by the Act has been made to a Land Administrator, or in the
case of Sarawak, a Probate Officer, and the estate has not been fully administered, the
Land Administrator will have jurisdiction to continue the proceedings and must continue
them in accordance with the Act, as early as circumstances admit10.
1 Ie the Small Estates (Distribution) Act 1955 (Act 98). As to when the Act came into force see [330.756] note 2.
5 For the meaning of 'Registrar' see [330.761] note 1.
6 For the meaning of 'State' see [330.757] note 2.
9 Ie by virtue of the Small Estates (Distribution) Act 1955 s 8: see s 27(2). See Chua Eh Swee v Sew Chew Eng [1982] 1
MLJ 84. See also [330.762].

Page 581
[330.804]
No advocates
No advocate will be entitled to appear on behalf of any party in any proceedings in respect of any
hearing of any enquiry or appeal under the Customary Tenure Enactment1 or before the Land
Administrator2 under the Small Estates (Distribution) Act 19553 except with the permission of the Land
Administrator, who may grant or withhold such permission in each case as he thinks fit4.
1 The Customary Tenure Enactment (Negeri Sembilan) (FMS Cap 215) s 22.
[330.805]
No solicitor's costs
No solicitor's costs will be allowed out of any small estate1 except in a case where the estate exceeds
RM3,000 in value the Land Administrator2 may, for special reasons stated in the order, allow such costs
to an amount not exceeding the amount of such costs as might be awarded in a Sessions Court in West
Malaysia or the Court of a Magistrate of the First Class in East Malaysia, as the case may be, in a
comparable proceeding3.

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Page 1

Halsburys Laws of Malaysia

Wills, Probate, Administration and Succession

Halsburys Laws of Malaysia

WILLS, PROBATE, ADMINISTRATION AND SUCCESSION

(i) Nature and Characteristics of Wills

Meaning of 'will' and 'codicil'

An attempted testamentary disposition cannot be enforced as a declaration of trust11. The revocable

2 As to the appointment of executors see [330.022].

3 As to alterations see [330.036]; and as to revocation see [330.037] and following.

13 Re Heys, Walker v Gaskill [1914] P 192.

Delegation of will-making power

7 Re Jarman's Estate, Leavers v Clayton (1878) 8 Ch D 584 at 587 per Hall VC .

Execution of wills outside or within Malaysia; formal validity

(1) the provisions of the Wills Act 19593; or

1 For the meaning of 'will' see [330.001].

4 See the Wills Act 1959 s 27.

5 Ie under the Wills Act 1959 s 26: see [330.035].

8 See the Wills Act 1959 s 29.

(ii) Devolution of Property under Testamentary Disposition

Paramount title of the personal representatives

2 See [330.241] and following.

3 See generally [330.326] and following, and [330.399] and following.

4 See [330.498] and following.

5 See the National Land Code (Act 56 of 1965) ss 346, 347.

6 See the National Land Code s 346(5).

Effect of will on property

Conditions of an effectual gift by will

(1) the testator must be dead2;

1 As to the failure of gifts see [330.047], [330.060] and following.

2 Thorp v Tomson (1588) 2 Leon 120. See also [330.002].

4 As to gifts obtained by undue influence see [330.012].

5 As to want of knowledge and approval see [330.011].

6 As to the form of wills made abroad see [330.004].

7 As to revocation see [330.037]-[330.042].

8 As to alterations and erasures see [330.036].

10 See [330.043] and following.

11 As to probate see [330.326] and following.

12 As to construction generally see [330.070] and following.

13 As to property capable of being disposed of see [330.013] and following.

14 As to the capacity to benefit under a will see [330.017] and following.

15 As to interests that may be created see [330.048]-[330.052].

17 As to vesting of conditional interests see [330.222] and following.

(iii) Restriction on Freedom of Testamentary Disposition

Persons of full age and sound mind

1 See further [330.010].

(ii) Mental Disability

Soundness of mind, memory and understanding

Want of knowledge or approval

1 Barry v Butlin (1838) 2 Moo PCC 480.

C. PROPERTY CAPABLE OF DISPOSITION

(i) Property Disposable by Will

Immovables and movables

Property passing under a will

2 For the meaning of 'property' see [330.001] note 2.

3 Wills Act 1959 (Act 346) s 3.

(ii) Things Not Disposable by Will

Property not belonging to the testator

Choses in action which are not disposable

(i) Capacity to Benefit

Capacity to benefit in general

2 Re Chionh Ke Hu (decd) [1964] MLJ 270.