Legal procedures in estate management often encounter challenges, one of which involves Land Administrators requiring vesting orders for land transfers.
Within this context, Re: Estate of Teoh Cheow Choon: Ex Parte: Khor Hong Luang [1994] 4 CLJ 575 provides an essential case study. In this case, the Judge wrote an insightful distinction between the roles and authority of administrators and executors.
An administrator’s authority is granted solely through the issuance of Letters of Administration by the Court, and an administrator must provide a bond with sureties, seeking court approval for actions involving immovable property.
Section 60 (4) of the Probate and Administration Act 1959 states that without leave from the Court, administrators cannot:
(a) mortgage, encumber, or transfer in any way any immovable property located within a state and currently under their control; or
(b) enter into leases for such properties exceeding a term of five years.
In contrast, an executor, appointed by the testator in the will, does not require a bond, possesses broader powers derived from the testator, and can manage the deceased’s assets as directed in the will without court permission, unless restricted by the will.
Since the executor derives their powers directly from the testator, Section 60(3) of the Act states that the Executor can, without needing the Court’s permission, encumber, mortgage, or otherwise dispose of any property belonging to the deceased, in accordance with the testator’s instructions. However, if there are restrictions in the will, the executor can proceed only with the Court’s leave.
The Judge further held as follows:
In cases where an applicant is issued with the Grant of Letters of Administration he should only apply to the Court for leave to distribute but never, a vesting order, whereas an executor who is armed with a Grant of Probate with Will annexed need not make any such application either for leave or vesting order.
The Judge further explained as follows:
Vesting orders are primarily applicable only to matters e.g. application by survivors of joint tenants or beneficiaries of indentures of devolution and under the Trustee Act 1949 (Revised 1978), rather than under the Probate and Administration Act 1959 (Revised 1978).
Vesting orders are available in applications under the Trustee Act 1949, as follows:
- in trust situations spelt out under s. 48(a) to (h);
- under s. 50, on vesting orders in place of conveyance by minor in case of a trustee under disability;
- under s. 51, on vesting orders consequential on order for sale of land;
- under s. 52, on vesting orders consequential on judgment for specific performance of a contract or for sale or exchange of any interest in land;
- under s. 55, on vesting orders as to stock or a thing in action;
- under s. 58, on vesting orders of charity or society property in land, stock or thing in action; and
- under s. 57, on vesting orders in relation to minor’s beneficial interest in any property (movable or unmovable) for maintenance, education or benefit of the minor.
- And s. 54 provides that in any of the above applications under the Trustee Act, the Court may, if it is more convenient when making a vesting order, appoint a person to convey the land or interest therein.
What if the Land Administrator refuses to register the distribution of the respective shares in favour of the beneficiaries as per the Will of the deceased due to the absence of a vesting order?
The Judge further directed that if the above occurred, then the applicant could appeal under s. 418 of the National Land Code. Pursuant to s. 417 of the National Land Code, the Court may then direct the Registrar or any Land Administrator to give effect to any judgment or order made pursuant to the appeal under s. 418 of the National Land Code.
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