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(5) DISTRIBUTION OF ASSETS

A. LEGACIES AND ANNUITIES

(i) Classification of Legacies

General principle
An administrator1of a person who died intestate may distribute the estate according to recognised law 2
whereas an executor3 of a will must distribute the estate according to the terms of the will 4. However, the
beneficiaries of the estate are of course entitled to give up or renounce their rights or entitlement in the
property of the deceased if they so wish5.
Where a personal representative6 is issued with the grant of letters of administration, he should apply to
the court for leave to distribute or transfer7 but not for a vesting order8, whereas an executor who is
armed with a grant of probate with the will annexed 9 need not make such application as his authority to
distribute derives from the will10.
1 For the meaning of 'administrator' see [330.242] note 5.

2 As to intestate succession see [330.645] and following. See also Harinder Singh v Futuristic Builders Sdn Bhd [2006] 2
CLJ 272, CA (see [330.498] note 3).

3 See [330.243], [330.244].

4 Hsu Yik Chai v Hsu Yaw Tang [1982] 2 MLJ 227, FC.

5 In Paramanantham s/o MV Kandiah v Ganakiamah d/o Sabapathi Pillay [2009] 8 MLJ 600, issue arose as to whether a
letter of renunciation and consent executed by the plaintiffs and three others could be construed as an agreement by the
signatories to renounce all their rights to their share in the proceeds of the sale of the property as per their entitlement
under the Distribution Act 1958 (Act 300) and to have their shares transferred in the name of the defendant absolutely or
whether, despite the execution of the letter of renunciation and consent and the order, the defendant was still holding the
property of the deceased as a representative of the estate. It was held that the letter of renunciation and consent recorded
that the undersigned, in consideration of natural love and affection for the defendant gave up and renounced all their rights
in the property of the deceased. The language, in consideration of natural love and affection would not have arisen if the
transfer and conveyance was to the defendant as administrator only. The intent and effect of the two documents were very
plain and clear. The court also held that the fact that no mention was made of the proceeds of sale of the property did not,
in an objective consideration, render questionable the nature of the transfer and conveyance to the defendant.

6 As to personal representatives see [330.242] and following.

7 An administrator must obtain the previous permission of the court to deal with the distribution or transfer of the
immovable property of the estate: Probate and Administration Act 1959 (Act 97) s 60(4); see Re Ramanathan s/o AR A
Nachiappan (Administrator De Bonis Non with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998]
2 MLJ 90; Re Lua Kin Suai [1998] 7 MLJ 258. In Ong Thye Peng v Loo Choo Teng [2004] 3 MLJ 201, CA, the court held
that the accepted principles adopted by the courts on an application for leave to sell a deceased estate are established in
decided cases. Be that as it may, the facts might vary from case to case and therefore, they could be distinguished. It is
unwise to apply the principles established as a straightjacket.

8 In Re Estate of Teoh Cheow Choon (decd) [1994] 3 AMR 2438, it was held that a vesting order is applicable only in
probate and administration cases where it is uncertain who is the (or there is no) personal representative of a deceased
trustee or deceased chargee. The National Land Code (Act No 56 of 1965) s 420 (as amended by the Federal Territory of
Labuan (Extension and Modification of National Land Code) Order 2009 (PU (A) 454/2009) does not require the executor
or administrator to seek vesting orders from the court for the transfer of the land or immovables to the beneficiaries.
However, the Probate and Administration Act 1959 s 72(1), (2) explicitly makes a vesting order a requirement to enable a
transfer of immovable property from the personal representative to the beneficiary. This provision should be amended for
clarification purposes as an executor does not need to apply for leave to transfer land unless he intends to effect a transfer
contrary to the will and in the light that vesting orders are primarily applicable by survivors of joint tenants or beneficiaries
under the Trustee Act 1949 (Act 208) ss 48(a)-(h), 50, 52, 54, 55, 57, 58. As to the court's power to make a vesting order
or appoint a person to convey land see the Trustee Act 1949 s 48.In Re Yap Boon Eng [2001] 6 MLJ 442, the court held
referring to Re Teoh Cheow Choon (decd) (above) that an application for a vesting order is rarely a correct procedure to
adopt in probate and administration cases except in cases where eg it is uncertain who is (or there is no) personal
representative of a deceased trustee or a deceased chargee. It was further held that, 'it is trite law that there is no
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necessity for the executor to apply for leave to transfer land unless what he intends to effect goes against any restrictions
in the will of the deceased it is improper for either an executor or administrator to apply for a vesting order. The National
Land Code s 420 was held to merely prescribe that no order vesting any alienated or any share or interest therein, in any
person or body will affect the land, share or interest in question until it has been registered pursuant to that section, and
nothing else. This provision contains nothing which could be construed as permitting the executor or administrator to seek
vesting orders'. It was further held in Re Yap Boon Eng (above) per Jeffrey Tan J at 447: 'Whereas s 420 could not be
construed as permitting the executor or administrator to seek vesting orders, the Probate and Administration Act 1959 s
72, which provides that a personal representative may assent to the vesting in any person who (whether by devise,
bequest, devolution, appropriation or otherwise) may be entitled thereto, either beneficially or as trustee or personal
representative, of any immovable property to which the testator or intestate was entitled or over which he exercised a
general power of appointment by his will, and which devolved upon his personal representative, could not be construed as
necessarily requiring the executor in his other capacity as trustee to seek vesting orders in order to execute the will'.

9 The Probate and Administration Act 1959 s 17 provides that in any case where administration with the will annexed is
granted the will of a deceased is performed and observed in a like manner as if probate of the will had been granted to an
executor. It follows that no leave of the court to sell property of the deceased is required under s 60(4); see Re
Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non with the Will annexed, of the Estate of K AL RM
Karuppan Chettiar, decd) [1998] 2 MLJ 90.

10 See Re Lim Yew Teok (decd), British and Malayan Trustees Ltd v Chng Kiat Leng [1966] 2 MLJ 260, [1965-1968] SLR
475 where upon the true construction of the will on the death of the next-of-kin of the next-of-kin of a residuary legatee who
has enjoyed shares of income under the will, the shares of income enjoyed by him pass to such of his next-of-kin as
belong to the stirps of the original residuary legatee.

Specific legacies
A specific legacy1 must be some gift of definition and certainty or distinguishable from the whole of the
testator's estate or from the whole of the general residue of his personal estate. Such legacy must be in
existence at the time of the testator's death; otherwise the terms 2 of the gift have to be determined at the
time when the will was made. In the absence of specific instruction, the gift not in existence is said to be
adeemed3.
1 'Specific legacy' means a legacy of specified property: Probate and Administration Act 1959 (Act 97) s 2.

2 In Re Abdullah Saleh Shooker (decd) [1948] Supp MLJ 88, the executors applied to court for the determination of
whether interest was payable on a legacy under the will of the deceased.

3 In Lim Soo Siam v Leow Yong Moey [1933] 2 MLJ 214 it was held that the legacy to the testator's daughter was partially
adeemed during the testator's lifetime to the extent that the testator's daughter's marriage expenses were paid by the
testator himself and that the balance of the legacy should be paid to her for her sole use. As to ademption see [330.642],
[330.643].

General legacies
A general legacy1 is a gift arising from the general personal estate of the testator and has no application
to the distribution of property to the persons entitled on an intestacy 2. The construction of the will of the
deceased determines whether or not the gift is separate from the general personal estate of the
deceased3. A legacy which is in its nature general is not entitled to any exemption from abatement on the
ground that it is applied to any particular object or purpose 4. Such legacy is said to be abated if the fund
out of which the legacy was to have been paid has been exhausted 5.
1 A general legacy is included in the definition of 'pecuniary legacy'; see [330.527].

2 Soo Bian Joo v Soo Boon Leong (1958) 3 MC 236.

3 Shanti Rupchand Binwani alias Shanti v Udharam Dayaram Binwani [1951] MLJ 31.

4 Tan Boon Soo v Choa En Seng SLR Leic 406. As to abatement see [330.592]-[330.594].

5 As to abatement of general legacies see [330.592].

Demonstrative legacies
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A demonstrative legacy consists of a pecuniary legacy1 payable out of a named fund. When a legacy is
payable at a certain time, but is in terms contingent, the legacy becomes vested 2 when there is a
direction to pay the interest in the meantime to the person to whom the legacy is given 3.
1 It is a legacy comprising of money. For the meaning of 'pecuniary legacy' see [330.527]. See also Re Sevatha Vappoo
Maricar (decd) [1940] MLJ 65, where the court held that the residuary legatees should receive the gift in their character of
residuary legatees.

2 Woon Hong Chin v Chin Choo Lian [1930] SSLR 3; Re Choong Cheng Kean (decd) [1937] MLJ 175, [1937] SSLR 143.

3 Re Noormohamed Virjibah Velmohamed (decd), Sakker Khanu Noormohamed Merchant v Malek Sultan Calcuttawala [1958] MLJ 21
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What a residuary gift comprises

A residuary gift is a gift of what remains after meeting all liabilities of the estate and all other gifts as
specified under the will of the deceased1. It so includes property over which the testator has a general
power of appointment. In order to exclude from such a gift a particular property belonging to the testator
and not otherwise disposed of by will it is necessary to find a plain and unequivocal intention 2 on his part
not to include that property in the residuary gift.
1 See Re Chin Sem Lin's Settlement, Yong Tet Foong v Chin Thin Lee [1971] 2 MLJ 152.

2 See Re Vermont (decd) [1934] MLJ 159.

Lapsed or void devises or bequests

Unless a contrary intention1 appears by the will2, such property3 as is comprised or intended to be
comprised in any devise or bequest in such will contained, which fails or is void 4 by reason of the death of
the devisee or legatee5 in the lifetime of the testator or by reason of such devise or bequest being contrary
to law or otherwise incapable of taking effect, will be included in the residuary devise or bequest 6
respectively, if any, contained in the will7.
1 As to what constitutes a contrary intention see [330.532].

2 For the meaning of 'will' see [330.001] text to note 5.

3 See [330.001] note 2.

4 Re Tan Lip Buoy's Will [1996] 2 SLR 663 where it was held that the residue bequest to an ancestral fund was not
charitable and was void as it infringed the rule against perpetuities, and also the scope of the bequest being unclear was
void for uncertainty. Such bequest should be distributed according to the law of intestacy (see [330.645] and following).

5 In Foo Yin Choo v Foo Siew Lan [1972] 1 MLJ 69, FC, the Federal Court held that by the testator's intention, no residuary
legatee's share should lapse if it was possible for the substitutional gift to take effect.

6 Oh Wee Kee v Boon Bong Neoh (1882) 1 Ky 544, where the houses and the proceeds of the houses did not fall into the
residuary clause of the will of the testator.

7 Wills Act 1959 (Act 346) s 19. See Chia Hock Seng v Thor Keng Hong [1970] 2 MLJ 12 which determined the division of
the residuary estate and the construction of 'lawful male issue' in the will.
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D. THE RESIDUARY ESTATE ON INTESTACY

Trusts on intestacy
In the case of an intestate person1, his personal representatives2 so appointed as sanctioned by the court3
for the purpose to collect and preserve the property of the deceased, and to give discharge of debts due to
his estate, will have the power to dispose of all assets of the estate 4 of a wasting or perishable nature and
invest the proceeds of sale5.
Unless the court directs, no sale, transfer, conveyance or assent 6 in respect of immovable property is
made without the concurrence of all the personal representatives of the deceased; and where there are
several personal representatives, the powers of all may, in the absence of any direction to the contrary in
the grant of administration7, be exercised by any one of them8. An administrator9 may not, without the
previous permission of the court mortgage, charge or transfer by sale, gift, exchange or otherwise any
immovable property10 situate in any state and for the time being vested in him or lease any such property
for a term exceeding five years11.
An administrator is allowed in law reasonable testamentary and other expenses incurred by them, and
also proper funeral expenses and all reasonable expenses of subsequent religious ceremonies suitable to
the station in life of the deceased12.
1 See [330.645] and following.

2 As to personal representatives see [330.242] and following.

3 For the meaning of 'Court' see [330.256] note 3.

4 For the meaning of 'estate' see [330.242] note 3.

5 Probate and Administration Act 1959 (Act 97) s 23; see HSBC (M) Trustee Bhd v Kong Kim Hoh [1999] 3 MLJ 383.

6 As to assents see [330.627] and following.

7 For the meaning of 'administration' see [330.244] note 8.

8 Probate and Administration Act 1959 s 60(2); see [330.610]. See also Dr Ang Eng Lip v June Daniel Amaranickrama
[1997] 5 CLJ 148.

9 For the meaning of 'administrator' see [330.242] note 5.

10 For the meaning of 'property' see [330.242] note 7.

11 Probate and Administration Act 1959 s 60(4); see Re Ramanathan s/o AR A Nachiappan (Administrator De Bonis Non
with the Will annexed, of the Estate of K AL RM Karuppan Chettiar, decd) [1998] 2 MLJ 90; Re Lua Kin Suai [1998] 7 MLJ
258.

12 Probate and Administration Act 1959 s 44(1). As to testamentary and administration expenses see [330.533] and
following.

Entitlement to residue on intestacy

When any person dies or has died, having by his will appointed any person to be his executor 1, the
executor is deemed to be a trustee for the person, if any, who would be entitled to the estate in case the
person died intestate in respect of any residue not expressly disposed of, unless it appears by the will that
the person so appointed executor was intended to take the residue beneficially 2.
Where a trust declared in a will fails3 on the ground that it is impracticable of performance 4 or there is an
uncertainty with reference to the objects5, the residuary estate will devolve as upon an intestacy and there
should be an inquiry as to who should benefit under that intestacy 6.
1 As to executors see [330.243], [330.244].
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2 Civil Law Act 1956 (Act 67) s 21. See Rachael Mei Ling Ong v Dato' Bruno Henry Almeida [1998] 3 CLJ 71, [1998] 1 AMR
600. See also Re Lee Theam Neoh (decd) [1956] MLJ 22.

3 Re Chin Sem Lin's Settlement, Yong Tet Foong v Chin Thin Lee [1971] 2 MLJ 152.

4 In Re Valibhoy Charitable Trust [1975] 1 MLJ 187; [1976] 1 MLJ 207, CA (Sing), the Court of Appeal of Singapore
reaffirmed the trial judge's decision that although it became impracticable to carry out the intention of the testator as set out
in the will, because of the general charitable intention as evinced by the testator, the trusts had not failed but should be
carried into effect cy-pres by a scheme which conformed to the directions as closely as possible.

5 Re Chionh Ke Hu (decd) [1964] MLJ 270.

6 Re Lee Moey Chye (decd) [1966] 1 MLJ 131; Re Tan Lip Buoy's Will [1996] 2 SLR 663.
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F. FAMILY PROVISION

Persons for whom provision may be made

In the event that a will does not provide adequately for the dependants of a deceased, the law 1 provides
that the person so dependent may apply to the court for reasonable provision for maintenance to be made
to him. Applications may be made in intestacy cases as well2, but where the surviving spouse has been
provided for with not less than two-thirds of the income of the net estate 3 and where the only other
dependants are the children, then no application can be made 4.
Applications for such orders of reasonable provision for maintenance may be made by:

1) the spouse of the deceased5;

1) the daughter who has not been married or who is, by reason of some mental or
physical disability, incapable of maintaining herself 6;
1) an infant son7; and
1) a son who is, by reason of some mental or physical disability, incapable of
maintaining himself8.

Such order is by way of periodical payment9 and the order will terminate not later than:

1a) in the case of a wife or husband, her or his remarriage;

1b) in the case of a daughter who has not been married or who is under disability, her
marriage or the cesser of her disability, whichever is the later;
1c) in the case of an infant son, his attaining the age of 21 years;
1d) in case of a son under disability, the cesser of his disability,
or, in any case, his or her earlier death10.
1 Ie the Inheritance (Family Provision) Act 1971 (Act 39) which came into force on 1 January 1973. This Act is applicable
throughout Malaysia but does not apply to the estate of deceased Muslims or natives of any of the States in East Malaysia: s
1(2). However, it has been extended to Sarawak with effect from 1 December 1986 by the Extension to the State of Sarawak
Order 1986 (PU (A) 446/1986).

2 See the Inheritance (Family Provision) Act 1971 s 3(1). As to intestate succession see [330.645] and following.

3 See [330.621].

4 Inheritance (Family Provision) Act 1971 s 3(1) proviso. The onus of proof is upon the applicant to show that the operation
of the deceased's will or intestacy has not given him reasonable provision.

5 Inheritance (Family Provision) Act 1971 s 3(1)(a). By virtue of the Inheritance (Family Provision) Act 1971 s 3(8), the court
is not bound to assume that the Distribution Act 1958 (Act 300) makes reasonable provision for the maintenance of the
dependants. Based on the relevant statutory provision of the Inheritance (Family Provision) Act 1971 s 3, the court may
order that reasonable provision for maintenance be made by way of periodical payments: Re Tan Hui Guan, decd (Phang
Siew Fa v Aw Kim Siok) [2006] 3 MLJ 663.

6 Inheritance (Family Provision) Act 1971 s 3(1)(b). 'Daughter' and 'son' respectively, include a female or male child adopted
by the deceased under the provisions of any written law relating to the adoption of children for the time being in force and
also the daughter or son of the deceased en ventre sa mere at the date of the deceased: s 2. See Re Tan Hui Guan, decd
(Phang Siew Fa v Aw Kim Siok) [2006] 3 MLJ 663 (maintenance of a child cannot exclude the education needs of the child;
'maintenance' does not mean mere 'subsistence').

7 Inheritance (Family Provision) Act 1971 s 3(1)(c).

8 Inheritance (Family Provision) Act 1971 s 3(1)(d).

9 Where the value of a deceased's net estate does not exceed RM40,000, the court has power to make an order providing
for maintenance, in whole or in part, by way of a lump sum payment: Inheritance (Family Provision) Act 1971 s 3(4).

10 Inheritance (Family Provision) Act 1971 s 3(2).

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Mode of application
In the High Court, proceedings under the Inheritance (Family Provision) Act 1971 1 are begun by originating
summons2, and the plaintiff must lodge with the court a supporting affidavit, exhibiting an official copy of
the grant of representation to the deceased's estate and of every testamentary document admitted to
proof, and notice of the proceedings must be served on every party to the proceedings 3.
1 Ie the Inheritance (Family Provision) Act 1971 (Act 39). As to persons for whom provision may be made see [330.617].

2 RC O 86 r 3. As to originating summons see CIVIL PROCEDURE (2014 Reissue) [190.2-022] and following.

3 RC O 86 r 2(1).

Facts material in the determination of the amount for maintenance by the court
The amount of annual income1 which may be made applicable for the maintenance of deceased
dependants2 by an order or orders to be in force at any one time must in no case be such as to render
them entitled under the deceased's will3 or under the law relating to intestacy4, or the combination of his
will and that law as varied by the order or orders to more than the following fraction of the annual income
of his net estate, that is to say:

2) if the deceased leaves both a wife or husband and one or more other dependants,
two-thirds5; or
2) if the deceased does not leave a wife or husband, or leaves a wife or husband and
no other dependant, one-half6.

Where the value of a deceased's net estate does not exceed a specified amount 7, the High Court has
power to make an order providing for maintenance, in whole or in part, by way of a lump sum payment 8.
In determining whether, and in what way, and as from what date, provision for maintenance ought to be
made by an order, the High Court must have regard to:

2a) the nature of the property representing the deceased's net estate and will not order
any such provision to be made as would necessitate a realisation that would be improvident
having regard to the interests of the deceased's dependants and of the person who, apart
from the order, would be entitled to that property 9;
2b) any past, present or future capital or income from any source of the dependant of
the deceased to whom the application relates, to the conduct of that dependant in relation to
the deceased and otherwise, and to any other matter or thing which in the circumstances of
the case the court may consider relevant or material in relation to that dependant, to the
persons interested in the estate of the deceased, or otherwise 10; and
2c) the deceased's reasons, so far as ascertainable, for making the dispositions made
by his will (if any), or for not making any provision or any further provision as the case may
be, for a dependant, and the court may accept such evidence of those reasons as it
considers sufficient, including any statement in writing signed by the deceased and dated,
so, however, that in estimating the weight, if any, to be attached to any such statement the
court will have regard to all the circumstances from which any inference can reasonably be
drawn as to the accuracy or otherwise of the statement 11.

1 'Annual income' means in relation to the net estate (see [330.621]) of a deceased person, the income that the net estate
might be expected at the date of the order, when realised, to yield in a year: Inheritance (Family Provision) Act 1971 (Act 39)
s 2.

2 As to the persons for whom provision may be made see [330.617]. As to the mode of application see [330.618].

3 For the purposes of the Inheritance (Family Provision) Act 1971 'will' includes codicil: s 2.
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4 As to intestate succession see [330.645] and following.

5 Inheritance (Family Provision) Act 1971 s 3(3)(a).

6 Inheritance (Family Provision) Act 1971 s 3(3)(b).

7 Ie RM40,000: Inheritance (Family Provision) Act 1971 s 3(4).

8 Inheritance (Family Provision) Act 1971 s 3(4).

9 Inheritance (Family Provision) Act 1971 s 3(5).

10 Inheritance (Family Provision) Act 1971 s 3(6).

11 Inheritance (Family Provision) Act 1971 s 3(7). See also [330.625].

Time for application

The person1 making the application2 for maintenance has to prove that he was a dependant and that the
disposition of the deceased's estate effected by his will 3 or the law relating to intestacy4, or the combination
of his will and that law is not such as to make reasonable provision for maintenance 5. Such application has
to be made by way of originating summons within six months from the date on which representation in
regard to the deceased's estate is first taken out6. However, the High Court will allow an extension of time
if the limitation to the said period of six months would operate unfairly, in consequence of:

3) the discovery of a will involving a substantial change in the disposition of the

deceased's estate (whether or not involving a further grant of representation);
3) a question whether a person had an interest in the estate, or as to the nature of an
interest in the estate, not having been determined at the time when representation was first
taken out; or
2) some other circumstances affecting the administration or distribution of the estate 7.

The personal representatives8 of the deceased will not be liable for having distributed any part of the
estate of the deceased after the expiration of the said period of six months 9 on the ground they ought to
have taken into account the possibility that the court might exercise its power 10 to extend that period11.
1 As to the persons for whom provision may be made see [330.617].

2 As to the mode of application see [330.618].

3 See [330.619] note 3.

4 As to intestate succession see [330.645] and following.

5 Inheritance (Family Provision) Act 1971 (Act 39) s 3(1).

6 Inheritance (Family Provision) Act 1971 s 4(1). As to an originating summons see CIVIL PROCEDURE (2014 Reissue) [190.2-
022] and following.

7 Inheritance (Family Provision) Act 1971 s 4(2). As to the administration of assets see [330.498] and following; and as to
the distribution of assets see [330.563] and following.

8 As to personal representatives see [330.242] and following.

9 See SRM Raman Chettiar v Soh Bek Neo [1952] MLJ 92, where the court examined the issue of 'within a certain time'.

10 RC O 86 r 2(1) provides that the court may at any stage of proceedings under the Inheritance (Family Provision) Act 1971
by order direct that any person be added as a party to the proceedings or that notice of the proceedings be served on any
person without prejudice to its power in relation to causes of action, counterclaims and parties (see RC O 15).

11 Inheritance (Family Provision) Act 1971 s 4(3). This provision, however, is without prejudice to any power to recover any
part of the estate so distributed arising by virtue of the making of an order: s 4(3).

Net estate
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In relation to a deceased person, his net estate is all the property of which he had power to dispose by his
will1 (otherwise than by virtue of a special power of appointment) less the amount of his funeral,
testamentary and administration expenses, debts and liabilities and estate duties payable out of his estate
on his death2.
1 See [330.619] note 3.

2 Inheritance (Family Provision) Act 1971 (Act 39) s 2.

Effect and form of the order

Where an order is made for reasonable provision for maintenance 1, for all purposes, including the
purposes of the laws relating to death duties2, the will3 or the law relating to intestacy4 as the case may be,
will have effect and will be deemed to have had effect, as from the deceased's death, subject to such
variation as may be specified in the order for the purposes of giving effect to the provision for maintenance
thereby made5.
An office copy of every order made must be sent to the High Court Registry for entry and filing, and a
memorandum of the order must be indorsed on, or permanently annexed to, the probate 6 or letters of
administration7 under which the estate is being administered8.
1 See the Inheritance (Family Provision) Act 1971 (Act 39) s 3. See also [330.617] and following.

2 'Death duties' means estate duty and every other duty leviable or payable on death: Inheritance (Family Provision) Act
1971 s 2.

3 See [330.619] note 3.

4 As to intestate succession see [330.645] and following.

5 Inheritance (Family Provision) Act 1971 s 5(1). The court may give such consequential directions as it thinks fit for the
purpose of giving effect to an order: see s 5(2) and [330.623].

6 See [330.341] and following.

7 See [330.399] and following.

8 Inheritance (Family Provision) Act 1971 s 5(3).

Consequential provision in order

The court may give such consequential directions as it thinks fit for the purpose of giving effect to an order
for reasonable provision for maintenance1, but no larger part of the net estate2 may be set aside or
appropriated3 to answer by the income thereof the provision for maintenance thereby made than such a
part as, at the date of the order, is sufficient to produce by the income thereof the amount of the said
provision4.
1 See the Inheritance (Family Provision) Act 1971 (Act 39) s 3. See also [330.617] and following.

2 See [330.621].

3 As to appropriation see [330.638] and following.

4 Inheritance (Family Provision) Act 1971 s 5(2).

Exercise of jurisdiction
In exercising its jurisdiction to grant reasonable provision for maintenance 1, the court is required to follow
the statutory directions as to the matters to be considered 2. If the court on the application by or on behalf
of any dependant of the deceased3 is of opinion that the disposition of the deceased's estate effected by
his will4, or the law relating to intestacy5, or the combination of his will and that law, is not such as to make
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reasonable provision for the maintenance of that dependant, the court may order that such reasonable
provision as the court thinks fit is, subject to such conditions or restrictions, if any as the court may
impose, made out of the deceased's net estate6 for the maintenance of that dependant7.
1 Ie under the Inheritance (Family Provision) Act 1971 (Act 39); see [330.617] and following.

2 See [330.625].

3 As to the persons for whom provision may be made see [330.617].

4 See [330.619] note 3.

5 As to intestate succession see [330.645] and following.

6 See [330.621].

7 Inheritance (Family Provision) Act 1971 s 3(1).

Matters which the court is to have regard

Where an application is made for an order for reasonable provision for maintenance 1, the court has to
determine whether the disposition of the deceased's estate effected by his will 2 or the law relating to
intestacy3, or the combination of his will and that law, is such as to make reasonable financial provision for
the applicant4; and if the court considers that reasonable financial provision has not been made, it may
order such reasonable provision as it thinks fit5. In determining these matters the court must have regard
to:

4) the nature of the property representing the deceased's net estate 6;

4) any past, present or future capital or income from any source of the applicant, to the
conduct of that applicant in relation to the deceased and otherwise, and to any other matter
or thing which in the circumstances of the case the court may consider relevant or material in
relation to that applicant, to the persons interested in the estate of the deceased, or
otherwise7;
3) the deceased's reasons, so far as ascertainable, for making the dispositions made
by his will (if any), or for not making any provision or any further provision as the case may
be, for the applicant8; and
2) whether the applicant has any mental or physical disability or is incapable of
maintaining himself9.

1 Ie under the Inheritance (Family Provision) Act 1971 (Act 39) s 3; see [330.617] and following.

2 See [330.619] note 3.

3 As to intestate succession see [330.645] and following.

4 As to the persons for whom provision may be made see [330.617].

5 Inheritance (Family Provision) Act 1971 s 3(1). See also [330.622], [330.623].

6 Inheritance (Family Provision) Act 1971 s 3(5). As to what is the deceased's net estate see [330.621].

7 Inheritance (Family Provision) Act 1971 s 3(6).

8 Inheritance (Family Provision) Act 1971 s 3(7).

9 Inheritance (Family Provision) Act 1971 s 3(1)(b), (c).

Variation of orders
On an application1 made at a date after expiration of six months from the date on which representation in
regard to a deceased's estate is first taken out2, or, as the case may be, of that period extended by the
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court3, the court may make such order, but only as respects property the income of which is at that date
applicable for the maintenance of a dependant of the deceased 4, that is to say:

5) an order for varying a previous order on the ground that any material fact was not
disclosed to the court when the order was made or that any substantial change has taken
place in the circumstances of the dependant or of a person beneficially interested in the
property under the will5, or as the case may be, under the law relating to intestacy 6; or
5) an order for making provision for the maintenance of another dependant of the
deceased7.

1 Ie an application for reasonable provision for maintenance under the Inheritance (Family Provision) Act 1971 (Act 39); see
[330.617] and following.

2 See the Inheritance (Family Provision) Act 1971 s 4(1) and [330.620].

3 See the Inheritance (Family Provision) Act 1971 s 4(2) and [330.620].

4 As to the persons for whom provision may be made see [330.617].

5 See [330.619] note 3.

6 Inheritance (Family Provision) Act 1971 s 6(1)(a). As to intestate succession see [330.645] and following.

7 Inheritance (Family Provision) Act 1971 s 6(1)(b).

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I. ADEMPTION

Nature of ademption
The asset must be in existence at the time of the testator making the will, for ademption to arise 1. The
doctrine of ademption applies where a testator gives a specific devise or a specific legacy 2 in his will to or
for the benefit of a beneficiary for a particular purpose, and which devise or legacy or part thereof, in
priority of any pecuniary legacy3 bequeathed under the testator's will, is afterwards expended for such
purpose before the death of the testator4.
1 Low Gim Har v Low Gim Siah [1992] 2 SLR 593 where it was held that ademption had not taken place by the signing of
the shareholders' agreement or execution of the assurances of the deceased. As to methods of ademption see [330.061].

2 As to specific legacies see [330.564].

3 See [330.527].

4 In Lim Soo Siam v Leow Yong Moey [1933] 2 MLJ 214, since the testator paid for the wedding expenses of his daughter
during his lifetime, the legacy to the daughter was said to have been partially adeemed at the death of the testator.

Failure by the absence of the subject-matter

In the absence of specific provision in the will providing for the contingency of ademption, then ademption 1
arises in the failure of a specific legacy2 by the absence at the death of the testator, of the subject matter of
the gift either by destruction or conversion into something else by the act of the testator or by duly
constituted authority. The doctrine of equitable election 3 and ademption applies in such an event when
distributing the property under the will4.
1 As to the nature of ademption see [330.642]; as to the methods of ademption see [330.061].

2 As to specific legacies see [330.564].

3 Re William Russell (1813) 2 Ky Ecc 6.

4 Lee Seang Neoh v Low Hin Tuan [1925] 5 FMSLR 154, where a testator executed bogus voluntary transfers of his land to
members of his family, neither an executor nor a beneficiary can assail them although a creditor may do so.
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