WILL by non-Muslim – designated solicitors to handle the Grant of Probate application
An executor[1] is someone whom the testator placed the trust on to administer the testator estate according to his wishes as stated in the last will.[2]Thus, the fiduciary duty arises from the role of the executor who is also acting as the trustee for the estate.[3]
The general duties of an executor “are to carry out the funeral rites of the deceased in accordance with the terms of the Will; to prove the Will; to collect the Estate and as when necessary to convert it into money; to pay the testator's debts in the proper order; to pay the legacies and to distribute the residue among the persons entitled.”[4]
The powers of an executor derived from the grant of probate issued by the court. The executor would then be emplaced as an “interim handler” of the deceased estate and to discharge all his duties by administering the estate according to the Will.
In essence, an executor is not only required to administer the estate in such a way which is consistent to the laws in force or public interest , he too responsible to administer the estate according to each and every term of the Will.
In general, a grant of probate application and process of administering the estate would be one of non-contentious. However, the process could turned hostile when the authenticity and veracity of the Will is disputed, or the appointed executor acts detrimental against the estate during the process of administering, thus breaching the executors’s fiduciary duty.[5]
But Suppose a Will contains a clause stating that a particular legal firm is to be appointed in handling the probate application, is the executor bound to do so or is the executor at liberty to appoint solicitors of his own choice?
More often than not, the designated solicitors firm under such clause in a Will is the one who prepared the Will for the testator. It is quite absurd for a solicitor to specify an alternative firm to handle the future probate application during drafting of a Will.
Thus, unless such clause becomes inoperative/inapplicable, where the named solicitors had ceased practice prior to the testator’s death for example, an executor would possibly subjected to a legal suit for breach of fiduciary duty in disregarding the terms in a Will by not appointing the designated solicitors.
Nevertheless, an executor may challenge the particular clause under undue influence which could give rise to a suspicious circumstances in making the Will.
Independence Test
‘Suspicious circumstance’ is well explained by the Court of Appeal with reference to Theobald on Wills, which reads as follows:-[6]
“If a will was prepared and executed under circumstances which raise a well grounded suspicion that the will (or some provision in it, such as the residuary gift) did not express the mind of the testator, the will (or that provision) is not admissible to probate unless that suspicion is removed by affirmative proof of the testator’s knowledge and approval. A classic instance of suspicious circumstances is where the will was prepared by a person who takes a substantial benefit under it. Another instance is where a person was active in procuring the execution of the will under which he takes a substantial benefit, for instance, suggesting the terms of the will to the testator and instructing a solicitor chosen by that person.”[7]
The above position has been long recognized under common law of England, where such clause directing certain attorney as counsel for the estate was held to be not binding on the executor back in 1800s on the reason that it did not impose any trust on the executors.[8]The same position has been followed by the US in Conlon v. Sullivan(1935).
Lord Slynn in Fulton v. Andrews [1875] LR 7 HL 448
“These authorities, and many others to which it is not necessary to make reference since they are on similar lines, make it clear that where a person is in a fiduciary relationship with another who is intending to make a will, that person if he prepares or is closely involved in the preparation of the will or informing the testator's intentions must if the will is challenged satisfy the court that the testator knew and understood what he was doing and that the will has given effect to his intentions. The possibility of undue influence leading to the provision of such a benefit for the person, whether a solicitor or not, but particularly a solicitor, must be ruled out. The simplest way of avoiding the conclusion that there has been such influence is to ensure that an independent legal adviser is consulted by the testator or at any rate to give a clear and recorded opinion that such advice be obtained.[9]
Although there is no clear definition as to what constitute “benefit” obtained under the Will, nevertheless such provision in a Will that ‘forces’ the executor to appoint the named solicitors in handling the probate matter would no doubt place the solicitors at liberty to quote the professional fees, which the executor is bound to settle with the estate monies even it is exorbitant. Unless proven otherwise,[10] such advantageous “granted” to the named solicitors could arguably amounting to a “benefit” or an unfair bargaining position to commence with.
On the other hand, who is the ‘client’ in a probate application proceedings, the executor or the testator? As illustrated below, the answer to this will decide the one with deciding power in appointment of solicitors.
Principle of appointment of solicitors
The nature on appointment of solicitors is explained by our Court of Appeal in the case of Vellasamy Pennusamy:-
“While it is true that an advocate and solicitor is free to choose his client, the converse is also true. The client has a right to counsel of his own choice (Oswald Hickson Collier & Co (a firm) v. Carter-Ruck [1984] 2 All ER 5, CA; an Foster v. Elsley [1881-2] 19 Ch. D 518). Once a relationship between an advocate and solicitor and his client is created, fiduciary obligations will arise (In re Van Laun, Ex parte Chatterton [1907] 2 KB 23 at 29, CA; and Oswald Hickson Collier & Co (a firm) v.Carter-Ruck (supra))”[11]
Contrary to a direct relationship between a client and a solicitor, a solicitor in a Grant of Probate application owes a fiduciary duty to the executor in ensuring the Grant of Probate is applied for in accordance to the law and such duty is only discharged upon issuance of Grant of Probate by the courts. Subsequent in obtaining the Grant of Probate, the executor who is also a trustee, owes a fiduciary duty to the estate to ensure proper administration of the estate to the beneficiaries.
Rule of Liability
As such, the beneficiaries of an estate could hold the executor liable for the negligence of the solicitors who handle the probate application in compromising the estate even before the executor commences administrating the estate,[12]placing the obligation on the executor to oversee the solicitors handling the grant of probate.
Furthermore, the true intention of the testator to administer the estate to the beneficiaries (in accordance to the Will) will not in any way affected by the executor in appointing different solicitors to apply for the Grant of Probate.
Wherefore, it is arguably that the ‘client’ in a grant of probate application is the executor and not the testator. Without the benefit of precedents and pending upcoming decisions by courts of law on this specific issue, following (i) the rule of liability on the executor, (ii) the principle in appointment of solicitor and (iii) the “independence test” on the testator in executing the Will, such clause in a Will compelling the executor to appoint the designated solicitors to handle the grant of probate application ought not to be binding on the executor.
[1]. Reference to executor shall also mean executrix.
[2]. Section 68 Probate and Administration Act 1959.
[3]. Trustees Act 1949; Re Haji Ali Bin Haji Mohamed Noor, Deceased; Habsah Binte Ngasirah (W) & Anor V. Mohamed Zain Bin Haji Ali & Ors [1933] 1 LNS 69;Lai Siew Kien V. Solid Invention Sdn Bhd & Ors[2020] 1 LNS 1092.
[4]. Mahinder Singh Sidhu, The Law and Wills Probate Administration and Succession in Malaysia and Singapore (1998, ILB); Sections 68 & 69 with reference to First Schedule of the Probate and Administration Act 1959.
[5]. Re Estate Of Lee Wee Kheng, Decd; Lee Hiok Ping & Ors V. Lee Hiok Kwee & Anor Court Of Appeal, Singapore [1981] 1 LNS 134 - The executors of the estate had not ascertained the assets, had not got in the assets, did not account who are the beneficiaries, were not ready with full and complete information on the estate which it was their duty to obtain and provide. They have not distributed the estate, although they accepted the office 19 years ago from the date of the action commenced at court; Jeremy Swee Tech Heanne & ORs v Collin Swee Lay Keong [2014] 1 LNS 1116
[6]. Tho Yow Pew & Anor v Chua Kooi Hean [2002] 4 CLJ 90
[7]. Similar position taken in Sarkar on Evidence, 14th Edition Vol 2 at page 1396.
[8]. Foster v. Elsley [1881-2] 19 Ch. D 518
[9]. Referred by High Court in Lok Swee Tiong v. Lok Siew Choo & Ors[2021] 1 LNS 1454
[10]. Eu Boon Yeap & Ors V. Ewe Kean Hoe [2007] 6 CLJ 791;
[11]. Vellasamy Pennusamy & Ors V. Gurbachan Singh Bagawan Singh & Ors[2012] 2 CLJ 712 Court of Appeal, affirmed by Federal Court in [2015] 1 CLJ 719
[12]. Contrasting to the case of Re Khoo Boo Gong, Decd Khoo Teng Seong V. Teoh Chooi Ghim & Ors [1981] 1 LNS 78 FC, appointment of attorney (a law firm) by the executor who resided overseas to take over conduct/duty as executor in administering the estate. Duty of the solicitors extended to a trustee for the estate and longer a mere solicitors appointed to handle the grant of probate application.
