Chern Chiow Yong and Others v Cheng Chew Chin

• Judge: Warren Khoo L H J
• Judgment Date: 30 March 1998
• Neutral Citation: [1998] SGHC 88
• Citation: [1998] SGHC 88
• Defendant Counsel: Michael Khoo SC and Lim Loo Leong (Lim & Co)
• Published date: 19 September 2003
• Plaintiff Counsel: Raymond Chan, Kelvin Aw and Chua Wee Neo (Chan Tan & Partners)
• Date: 30 March 1998
• Docket Number: Suit No 105 of 1996
• Court: High Court (Singapore)
• Subject Matter: Executors,Whether executors can be sued,Probate and Administration,Parties,Grant of probate not extracted,Application for probate by executors,Deceased a party to pending proceedings,Civil Procedure,Death of party,O 15 r 7(2) Rules of Court 1996,Substitution by executors of deceased party,Whether proceedings to be suspended pending extraction of grant

Judgment:

WARREN LH KHOO J

This is an appeal against an assistant registrar`s decision on the plaintiffs` application allowing the executors of the will of the defendant, who has died during the pendency of this suit, to be substituted as the defendants and ordering that the suit be carried on. The application was made under O 15 r 7(2) of the Rules of Court 1996, which provides as follows:

Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first-mentioned party. An application for an order under this paragraph may be made ex parte.

2.The executors have applied for and obtained grant of probate, but the grant has yet to be extracted. They themselves have also applied to be substituted for the deceased defendant, but they take the view that the proceedings in the suit should be stayed on the ground that the probate has yet to be taken out.

3.The case close to point is the Privy Council case of Mohamidu Mohideen Hadjiar v Pitchey [1894] AC 437, an appeal from the Supreme Court of Ceylon. In that case, the executor named in a will had applied for probate and an order for the grant of probate had been made, but he had not taken out the probate; neither had he taken any steps to administer the estate. It was held that a seizure of premises belonging to the estate in enforcement of a judgment obtained in default of appearance in a suit against the executor was ineffectual to bind the testator`s estate.

4.The underlying reason for this decision was that an executor may renounce his appointment before the grant of probate has been sealed. However, where an executor has acted in a manner with reference to the testator`s estate which shows an intention to take upon the office of executor, he is deemed to have accepted the office. Once he has so accepted the office, he cannot renounce it. Thus, in Vickers v Bell (1864) 4 De GJ & Sm 274, it was held that a statement by an executor named in a will, in answer to a query, that he was one of such executors, was held to be sufficient, so that a suit could be...