An executor under a subsisting grant of probate holds the exclusive right to manage estate property. Consequently, beneficiaries or claimants of unregistered inter vivos gifts lack a caveatable interest to challenge an executor's caveat until the estate is fully administered.

JUDGMENT

Moh Kok Wai JC:

Introduction

[1] This is an application by way of originating summons brought pursuant to ss 327 and 329 of the National Land Code 1965 ("the NLC"). The plaintiff seeks an order for the removal of a private caveat entered by the defendant over a parcel of land held under Geran No 79673, Lot 22475, Mukim Kuala Lumpur, known as No 8, Jalan Telawi 6, Bangsar Baru, Kuala Lumpur ("the Property").

[2] The plaintiff's case is that the defendant has no caveatable or registrable interest in the Property. She asserts that the Property had been validly gifted to her by her late mother during the latter's lifetime by way of an inter vivos gift, such that it did not form part of the deceased's estate at the time of death. The defendant, on the other hand, resists the application on the basis that he is the duly appointed executor under a subsisting and unchallenged grant of probate. He contends that the Property remains registered in the name of the deceased and is listed as part of her estate, and that, as a matter of law, the entirety of the right to the estate property vests in the personal representative pending due administration.

[3] The essential question before the Court is therefore a narrow but significant one. It turns on whether, on the materials properly admissible in an originating summons under s 327 of the NLC, the defendant has demonstrated a caveatable interest sufficient in law to justify the continued maintenance of the private caveat.

Background Facts

[4] The plaintiff and the defendant are siblings. Their mother, the late Kirpal Kaur a/p Gurbachan Singh, passed away on 2 April 2022. The Property was at all material times registered in the name of the deceased. There is no dispute that she was the sole registered proprietor until her death.

[5] During her lifetime, the deceased executed a last will and testament dated 29 December 2013. By that will, the defendant was appointed as executor. On 18 July 2022, the High Court at Kuala Lumpur granted probate of the said will in originating summons numbered WA-32NCvC-1187-04/2022 ("the Grant of Probate"). The Grant of Probate remains valid and has not been revoked, recalled, or otherwise impeached in any probate proceedings.

[6] In the schedule of assets and liabilities forming part of the Grant of Probate, the Property was expressly listed as part of the estate of the deceased. No rectification or amendment to that schedule has been sought in the probate Court.

[7] Following the issuance of the Grant of Probate, the defendant, in his capacity as executor, entered a private caveat over the Property on or about 21 September 2022 pursuant to s 323 of the NLC, asserting his interest as executor and beneficiary of the estate.

[8] The plaintiff commenced the present originating summons under s 327 of the NLC seeking the immediate removal of the said private caveat. Her application is premised on the assertion that the Property had ceased to form part of the deceased's estate prior to her death. In support of that assertion, the plaintiff relies on a deed of gift dated 2 December 2021, said to have been executed by the deceased during her lifetime. The plaintiff further deposes that Form 14A was executed and that the original issue