A grant of probate issued during the existence of a caveat is invalid and constitutes a nullity, highlighting the mandatory nature of providing notice to caveators.

Headnote:(A) Public Trust Corporation Act 1995 - Section 13(1) - Probate and Administration Act 1959 - Sections 33 and 34 - Grant of probate challenged on grounds of improper issuance during an active caveat; the court emphasized the significance of caveats in probate proceedings. The appeal centered on whether the ARB could grant probate when appointed only as an administrator and the legal effect of a caveat lodged prior to issuing the grant. (Paras 2, 25, 28)

(B) The court ruled that due process regarding notice must be observed before a grant of probate can be issued during the existence of a caveat, emphasizing that a grant in contravention of a caveat is a nullity. (Paras 24, 26)

Facts of the case:
The deceased left a complex estate managed by executors caught in a protracted legal battle with claims for the issuance of probate challenged by the appellant. The case revolved around the role of the Public Trust Corporation as an administrator versus an executor and the consequences of the caveat lodged prior to the grant's issuance.

Findings of Court:
The court concluded that the grant of probate issued by the ARB was invalid due to the presence of the caveat at the time of issuance, necessitating its revocation.

Issues: Whether the ARB could petition for a grant of probate when appointed solely as an administrator and the impact of a prior caveat.

Ratio Decidendi: A grant of probate made during the existence of a caveat is invalid, necessitating adherence to proper procedures established under statute. The intention behind caveats as notices to the court is to prevent grants without notification of the caveator.

Result: Appeal allowed with costs.

Table of Content
1. chronology of estate administration and disputes. (Para 1)
2. details of legal proceedings related to estate management. (Para 2 , 3 , 4 , 5 , 6 , 8 , 10 , 12 , 18 , 26)
3. arguments on validity of probate grant and implications. (Para 7 , 9 , 11 , 13 , 15 , 17 , 19 , 21 , 23 , 25)
4. court findings on effects of caveat and grant mistakes. (Para 14 , 16 , 20 , 22 , 24)
5. court analysis on the implications of existing caveats on probate grants. (Para 27)

JUDGMENT

Abdull Hamid Embong FCJ:

(1) The background to this appeal is best understood by the following chronology of events which spanned over 20 years:

01.07.1991 Kantilal Prabhulal Doshi ("the deceased") died leaving a will in which his wife, Damayanti Kantilal Doshi, and his youngest son, Jogesh Kantilal Doshi (Jogesh) were named as executrix and executor respectively of the deceaseds estate. (In this judgment we will refer to them as the then executrix and executor)

17.08.1991 The then executrix and executor then instituted Johor Bahru High Court Suit No. 22-195-1991 ("Suit No. 195") against the appellant, his wife and Overseas Industries Sdn Bhd (a company which was formed by the deceased in 1969) for inter alia a declaration that the appellant holds 1,475 shares in the said company in trust for the estate.

15.10.1991 Probate was granted in favour of the then executrix and executor.

17.09.1994 The appellant, his wife and Overseas Industries Sdn Bhd filed a notice of motion for an order that the grant of probate granted by the High Court to the then executrix and executor be revoked.

29.07.1995 The High Court allowed the above-mentioned application and ordered that the official administrator be appointed to administer the estate of the deceased.

The then executrix and executor appealed against that order of the High Court.

04.06.1998 The Court of Appeal affirmed the order of the High Court and the respondent (ARB) was duly appointed as the administrator of the estate pursuant to Public Trust Corporation Act 1995 .

(Meanwhile, several writs of summons and originating summonses as well as originating petitions had been filed by the parties mainly regarding the issues of directorial positions and the holding of shares in Overseas Industries Sdn. Bhd.

By 28 February 2006, all the cases were consolidated and were ordered to be tried together with Suit No. 195.)

01.11.2007 A notice of caveat was entered by the appellant against the estate of the deceased via Probate No. 30-2007.

04.01.2008 A grant of probate was issued to ARB.

(The appellant contended that the issuance of the said grant of probate was made without any notice given to the appellant.)

05.02.2008 The appellant filed an Originating Summons No. 24-384-2008 in the High Court to have the appointment of the ARB as administrator of the estate revoked and a private trust company be appointed in the ARBs place to complete the administration of the estate.

19.03.2008 The appellant filed a summons in chambers (encl. 194) seeking to strike out the Suit No. 195 on the ground that the ARB had no locus standi to maintain the suit as the ARB had neither applied for nor extracted the grant of letters of administration to the estate.

27.03.2008 The ARB filed an affidavit in reply stating that they had, on 4 January 2008, extracted the grant of probate for the deceaseds estate.

31.03.2008 The appellant withdrew his application in Originating Summons No. 24-384-2008 for the revocation of the appointment of the ARB as administrator of the deceaseds estate.

On the same day, the appellants summons in chambers (encl. 194) was struck out by consent. It was also ordered that "the appellant shall withdraw all the outstanding interlocutory applications in the consolidated actions" to pave the way for the Suit No. 195 and the consolidated actions to be heard.

24.06.2008 The appellant filed an Originating Summons No. 24-1970-2008 (the present action) applying for an order that the grant of probate dated 4 January 2008 to the ARB

Click Here to Read the rest of this document

2011 MarsdenLR 2819

ARIFIN ZAKARIA, ZULKEFLI MAKINUDIN, ABDULL HAMID EMBONGJIGARLAL KANTILAL DOSHI – AppellantVersusAMANAH RAYA BHD – Respondent

A grant of probate issued during the existence of a caveat is invalid and constitutes a nullity, highlighting the mandatory nature of providing notice to caveators.

Cases Referred (1)

ARIFIN ZAKARIA, ZULKEFLI MAKINUDIN, ABDULL HAMID EMBONG
JIGARLAL KANTILAL DOSHI – Appellant
Versus
AMANAH RAYA BHD – Respondent