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Writer's pictureGavin Jayapal

Appointing an Administrator Pendente Lite (APL) pending disposal of a Contentious Probate Proceeding



In a previous article, I wrote about Contentious Probate Proceedings (CPP).

 

One matter that rarely gets discussed in Malaysia would be the appointment of an Administrator Pendente Lite (APL). A search on LexisNexis indicates that there are only ~20 cases discussing APLs.

 

APLs and their appointment


One will recall that upon a CPP being initiated, a Citation is issued to impound the Grant of Probate/Letters of Administration.

 

Once this happens, the Estate is left rudderless. This may not be an issue if the Estate is small or if it has been liquidated in toto (and the monies are kept in an interest-bearing account). However, where the Estate has numerous lands and assets that must be administered pending the disposal of the CPP, it is of the imperative that an APL be appointed.

 

The APL, being a Court-appointed officer, will step into the shoes of a general administrator of the Estate, pending disposal of the CPP. One may liken the APL to a Liquidator/Receiver; a steady hand at the helm who handles the Estate whilst the CPP plays-out in Court.

 

What does the APL do?


The APL will do what an Executor/Administrator would do. The APL will have all the powers vested in a general administrator. Essentially, he will:

 

  1. Receive all monies due to the Estate;

  2. Pay-out all monies owing by the Estate;

  3. Handle assessment and quit rent payments that may be due by the Estate for property;

  4. Instruct professionals for the Estate’s purposes;

  5. Instructing solicitors to commence and/or defend suits for the Estate. 


The law


The appointment of an APL is governed by Section 19 of the Probate and Administration Act 1959, read together with O. 72, r. 20 of the Rules of Court 2012.

 

To discover the purport and ambit of an APL, one must read 2 seminal cases:

 

  • Tebin Mostapa v Hulba-Daniyal [2020] 4 MLJ 721 (FC)

  • Chan T’shiao Li & Anor v Malcom Fernandez & Anor [2023] MLJU 2660

 

The decision in Chan T’shiao is especially illuminating. Leong Wai Hong JC outlined the law on several other cases involving the appointment of an APL and set-out the law in a clear, lucid and coherent manner. It is a must-read to determine the purport and ambit of an APL.

 

Older cases (those from the 40s and 50s) must be viewed with caution. At that time, Judges indicated that APLs could be all and sundry. Recent decisions indicate that this is not so, with neutrality and impartiality being the key driving forces behind the appointment of an APL.

 

Key takeaways


From the cases above, the key requirement for an APL to be appointed would be neutrality and impartiality.

 

An APL must be disinterested in the suit and the litigants. For all intents and purposes, the APL must come in to merely administer the Estate pending disposal of the CPP.

 

Procedural considerations


How does one file for an APL?

 

Before embarking on an APL application, the intended Applicant (generally, the Plaintiff) ought to conduct his due diligence. He/she must firstly scour and determine who they intend to appoint. As a rule of thumb, I generally opt for Liquidators, Receivers or Chartered Accountants. They are well-versed with financial matters and are able to act in a decisive manner when it comes to pecuniary considerations.

 

The APL application is then filed in the Court where the CPP application is being heard. The Judge will then determine whether an APL is necessary (or otherwise). Once appointed, the APL is an Officer of the Court (Chan T’shiao, supra).

 

The APL will then take charge of the Estate. If the APL is stuck or needs further guidance, he can return to Court to ask for leave of Court to justify his conduct. It is also good practice to mandate the APL to file periodic reports to the High Court and all litigants, to ensure that all parties are kept abreast as to the affairs of the Estate. 

 

Can an APL be refused?


Yes, an APL application may be refused. In Bazos [1964] 2 O.R. 236, the Surrogate Court (the equivalent of our High Court) appointed one of the Defendants to act as APL. The Defendant had allegedly exercised undue influence in obtaining the Will.

 

On appeal, the Ontario CA amended the Order to direct that an independent party should be appointed instead (subject to that party’s agreement):

 

None of the other parties having consented, it seems to us that the learned Judge ought to have followed the principle above enunciated by appointing some neutral trust company as the administrator pendente lite. Following the argument in this Court, during which time we made it quite clear to counsel for the respondents in the issue that we would not confirm the appointment of the Guaranty Trust Co., counsel conferred and they have now indicated that they are agreed that the Eastern & Chartered Trust Co. would be a suitable administrator pendente lite. The order of this Court will be, therefore, that the order of Forsyth, C.C.J., should be varied by substituting for the Guaranty Trust Co. of Canada as administrator pendente lite the name of the Eastern & Chartered Trust Co. Counsel for the Guaranty Trust Co. did not establish a case in favour of its appointment, much less a very strong case. It is well to remember that justice must not only be done but must also appear to be done, and we think it would be a very unusual situation where one of the parties to an issue such as was here ordered whould be appointed administrator pendente lite. That it should not be done in this case is crystal clear; apparently one of the witnesses to the disputed will was a director of the Guaranty Trust Co. In the face of that circumstance we are respectfully of the opinion that Forsyth, C.C.J., ought not to have made the appointment that he did.

 

Conclusion


An APL is a serious piece of litigation. The fact that is has been so sparingly moved in our Courts is indicative of that.

 

Speaking from my personal experience, I have moved 3 APL applications and challenged 2. When facing an APL application, there are considerations that the Respondent must take into account to safeguard his interests. This may include filing their own application to appoint an APL, thereby resulting in a joint appointment.

 

These are all considerations that must be carefully weighed-up by the parties. At the end of the day, one must be careful and circumspect in utilising this remedy. An abuse of the application is one that may very well hoist one on one’s own petard.


GAVIN JAYAPAL

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