Case note: Lee v Yap [2026] VSCA 20
A common issue that arises in estate administration is determining when an executor is appointed and acquires the authority to deal with an estate, including in legal proceedings.
In Lee v Yap [2026] VSCA 20, the Court of Appeal tackled the controversy, confirming both the source of authority and when the appointment becomes effective.
Background
The Yap Brothers Family Trust (Trust) was established in 1982 by brothers Chin Huat Yap (Huat) and Chin Ming Yap (Ming). Yap Brothers Holdings Pty Ltd was appointed as the corporate trustee of the Trust.
The Trust was initially established for the benefit of Huat and his first wife Yew Han Lee (Flora); their children, Eng Seng Yap (Vincent), Eng Hock Yap (Hock) and Eng Hing Yap (William); their grandchildren; and Ming. Issues arose in the administration of the Trust as family circumstances changed over time.
In 2019, legal proceedings were commenced and those proceedings remained on foot when Huat passed away. This left the Court with the issue of how Huat would be represented in those proceedings.
One simple approach might be to appoint whoever was named as executor under Huat’s last will. However, what if that will had not been admitted to probate? What if there was a question as to its validity?
After Huat’s death, one of his children, Hock, produced a will purporting to be Huat’s last will. The will appointed Hock as both the sole executor and beneficiary. Hock did not seek probate of the will, noting that Huat had no assets in Victoria unless his estate could establish an interest in the Trust.
Huat’s second wife, Sau Lin Kam, reserved her position regarding the will’s validity but did not challenge it.
To allow the proceedings to continue against Huat’s estate, an application was made to appoint a representative for the estate under the Supreme Court Rules. The primary judge, relying on earlier first-instance decisions, appointed Huat’s second wife to represent the estate pursuant to rule 16.03 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) on the basis that it was said to be the appropriate mechanism pending probate being granted.
Huat’s first wife, Flora, and his son, Vincent, sought leave to appeal this and several other interlocutory decisions.
Issues on appeal
The applicants raised five grounds of appeal.
One of the grounds (Ground 4) for which leave was granted was:
- whether the primary judge erred in appointing a representative for Huat’s estate under rule 16.03, or whether the Court ought to have proceeded under rule 9.09; and
- whether Hock, as executor, who had not yet proven the will and obtained probate, was Huat’s ‘personal representative’ for the purposes of the Rules.
The applicants succeeded on the above ground.
Key findings
The Court of Appeal interpreted the operation of rules 9.09, 9.10 and 16.03 of the Rules. It found that rule 16.03 applies where a deceased person has ‘no personal representative’ and that rule 9.09 applies where the interest or liability of a deceased party devolves upon another person.
The Court also considered whether a named executor who has not yet obtained a grant of probate qualifies as a ‘personal representative’ of the estate.
The Court found, applying the High Court’s reasoning in Ryan v Davies Bros Limited (1921) 29 CLR 527 and its previous decision in Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2) (2009) 24 VR 155, that an executor’s title derives from the will which operates from the death of the testator, not the grant of probate. Their Honours stated:
“At common law, the title to the personal estate of the deceased vests in his or her executor from the date of death.”
The Court therefore confirmed that the correct position is that a named executor is a personal representative from the date of death, meaning that rule 9.09, rather than rule 16.03, is the applicable rule.
However, the Court qualified its finding with an important nuance that the office of the executor is not constituted until the named person accepts it, either expressly or by conduct. There was no evidence or finding on whether Hock had accepted the office.
Therefore, the Court granted leave on Ground 4 and allowed the appeal, setting aside the primary judge’s order regarding the applicability of rule 16.03 and remitted the matter for redetermination. The Court directed the primary judge to first ascertain whether Hock had accepted his office of executor. The issue of whether Hock accepted his office has not yet been determined.
Concluding remarks
The decision in Lee v Yap resolves the question of whether an executor’s authority derives from the will or from a grant of probate.
It confirms that an executor’s title vests immediately upon the testator’s death and that obtaining probate is not a prerequisite for being recognised as a personal representative for procedural purposes.
Accordingly, where a deceased person left a will, the first question is whether the named executor has accepted the office. If so, that person is the personal representative and the proceeding should be reconstituted under rule 9.09. Rule 16.03 applies only where there is no personal representative, such as where there is no will, the executor declines to act, or no grant of administration has been obtained.
Contact us
Rigby Cooke Lawyers’ Wills, Trusts & Estates group can assist executors with the administration of estates, estate litigation and advice regarding executors’ powers and duties.
If you wish to discuss the Court’s decision or how we can assist you, please contact a member of our Wills, Trusts & Estates group.
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