When a person dies and he made a valid will he is deemed to have died testate. In the will, there would be a named executor to the will. In some cases, there may be more than one executor. The executor would then have to obtain the grant of probate. This is the formal appointment of the executor and it is granted by the Family Justice Courts under Part 14 of the Family Justice Rules.

In certain cases, an executor of a will may want to commence an action before the grant of probate is obtained and extracted. In such an instance, the capacity of the executor comes into question as the executor is seeking to bring an action in court before he obtains the grant of probate.

 

An executor of a will can commence an action in court before obtaining the grant of probate.

As held in the High Court case of Lee Han Tiong and others v Tay Yok Swee [1996] 2 SLR(R) 833 (“Lee Han Tiong”) at [5] and [15], an executor of a will obtains his title and authority from the will and not from legislation. As the will takes effect upon the deceased’s death, the executor obtains his title and authority from the moment of the deceased’s death. In this case, as [the person] never renounced probate, he retains this title and authority and can bring an action in court before obtaining the grant of probate. The later High Court case of Teo Gim Tiong v Krishnasamy Pushpavathi [2014] 4 SLR 15 at [21] affirmed this holding.

 

An executor alone can bring an action to court. He does not need to be joined by the other executors.

In the case where there is more than one executor, a sole executor can commence an action in court. Unless it is stipulated in the will that a consensus is required, the sole executor does not need to commence the action together with the other executors (as held in the High Court case of Lee Han Tiong and others v Tay Yok Swee [1996] 2 SLR(R) 833 at [16]).

 

While an executor can commence an action immediately after the death of the testator, he cannot maintain an action an proceed beyond the stage at which he has to prove his title.

One of the key characteristics of a will is that it is ambulatory. This means that a will takes effect only upon the death of the testator. Therefore, the moment the testator dies, the will comes into effect. Since the executor obtains his title and authority from the will (Lee Han Tiong at [5] and [15]), his title and authority are obtained the moment the testator dies. Therefore, he can commence an action immediately after the death of the testator.

However, the grant of probate is the only conclusive proof of the executor’s title. Therefore, while an executor can act and commence an action after the death of the testator, he cannot maintain the action and proceed beyond the stage at which he has to prove his title (Re Ong Soon Chuan [1999] 2 SLR(R) 380 at [4]-[5]). This stage is the hearing at which a formal order is to be made.

Therefore, while the executor can commence an action, will have to obtain the grant of probate before the hearing of the matter in court.