Lee Han Tiong and Others v Tay Yok Swee

• Jurisdiction: Singapore
• Judge: Lim Teong Qwee JC
• Judgment Date: 19 August 1996
• Neutral Citation: [1996] SGHC 176
• Docket Number: Suit No 239 of 1992
• Date: 19 August 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Christopher Woo (Harry Elias & Partners)
• Citation: [1996] SGHC 176
• Defendant Counsel: Goh Kok Yeow (De Souza Tay & Partners)
• Court: High Court (Singapore)
• Subject Matter: Whether action could be brought without joining other executors,Whether executor could bring action before probate granted to him,Acts before grant,Probate and Administration,s 37 Probate and Administration Act (Cap 251),Executors

Cur Adv Vult

This is an appeal from an order of the deputy registrar that the claim on behalf of the estate of Goh Seong Pek deceased be struck out.

The plaintiffs brought this action by writ issued on 6 February 1992 claiming an account and other reliefs arising out of an agreement to develop land made on or about 30 June 1981. The agreement was made between the first and second plaintiffs and another person of the first part, the third and fourth plaintiffs and the deceased of the second part and the defendant of the third part. There was a mistake in the indorsement of the writ (and the subsequent proceedings) and a summons was issued to amend the statement as to the third plaintiff`s capacity from `administrator` to `executor` but this was heard after the order striking out the claim and no order was made on the application.

The deceased died on 13 November 1983 and by his will dated 23 September 1977 he appointed the third plaintiff and two other persons, namely, Chang Pey Yong and Goh Lei Eng his executors. On the petition of the three executors named in the will an order was made in Probate No 274 of 1984 on 30 March 1984 that probate of the will be granted to them. However the grant was not sealed and issued until after the hearing before me which is some four years after the writ was issued.

On 15 February 1996 the defendant applied to strike out the writ as regards the estate of the deceased. By this time the parties were ready for trial but for the third plaintiff`s application to amend filed about a week earlier. On 12 March 1996 an order was made striking out the claim made on behalf of the estate of the deceased. The questions before me in this appeal are:

(a) Can an executor bring an action before a grant of probate of the will by which he is appointed an executor is issued?

(b) Can an executor bring an action without joining the others?

In SMKR Meyappa Chetty v SN Supramanian Chetty [1916] AC 603 where the issue was whether for the purpose of s 17(1) of the Limitation Ordinance of 1896 then in force an executor named in the will who has not renounced probate but also has not obtained probate yet was a `legal representative of the deceased capable of instituting ... suit`. Section 17(1) of the Ordinance of 1896 provided:

When a person who would if he were living have a right to institute a suit or make an application dies before the right accrues the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting or making such suit or application.

Lord Parker of Waddington in the Privy Council said at pp 608, 609:

It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator`s death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title. An administrator, on the other hand, derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant.

I should have thought that for the last 80 years there could have been no doubt as to the answer to the first question but Mr Goh submitted that the law was altered in 1934 with the enactment of the Probate and Administration Ordinance. According to the explanatory statement the clauses of the Bill were based on the existing sections of the Civil Procedure Code of 1907. However there was one notable exception. The Ordinance of 1934 introduced definitions for `letters of administration` and `probate`. These definitions have remained unchanged and in the Probate and Administration Act (Cap 251):

`letters of administration` means a grant under the seal of the court issuing the same, authorising the person or persons therein named to administer an intestate`s estate in accordance with law and

`probate` means a grant under the seal of the court issuing the same, authorising the executor or executors expressly or impliedly appointed by a testator`s will, or one or more of them, to administer the testator`s estate in compliance with the directions contained in his will, and in accordance with law.

He referred to Singapore Gems Co v The Personal Representatives for Akber Ali (deceased) [1992] 2 SLR 254 where Chao Hick Tin J accepted the reasoning of Ismail Khan J in P Govindasamy Pillay & Sons Ltd v Lok Seng Chai & Ors [1961] MLJ 89. He also referred to Wong Moy v Soo Ah Choy (Suit No 1500/95) (unreported) grounds of decision dated 22 November 1995 where Judith Prakash J agreed with Chao Hick Tin J. Mr Goh submitted that since the enactment of the Probate and Administration Ordinance in 1934 the law has been that an executor can bring an action only when he has obtained a grant of probate under the seal of the...