Re Ong Soon Chuan

• Jurisdiction: Singapore
• Judge: G P Selvam J
• Judgment Date: 15 May 1999
• Neutral Citation: [1999] SGHC 125
• Citation: [1999] SGHC 125
• Date: 15 May 1999
• Year: 1999
• Plaintiff Counsel: Loh Wai Mooi (Bih Li & Lee)
• Docket Number: Bankruptcy No 2082 of 1998 (Registrar's
• Defendant Counsel: See Tow Soo Ling (Patrick Wee & Co),Andy Sim
• Court: High Court (Singapore)
• Published date: 19 September 2003

: The appeal

This is an appeal from the Registrar`s decision holding that executors of the estate of a deceased person cannot file a bankruptcy petition. The executors being dissatisfied with the decision have appealed against the decision. I heard arguments on the issue. I also invited the Official Assignee to assist the court. But before I could make a decision it came to light that the grant of probate had not been extracted. The fact that the grant had not been extracted was revealed in an affidavit. It would appear that the rule requiring the production of a sealed grant was not fully appreciated at that stage. When I became alive to that revelation I notified both counsel that I could not continue with the hearing and make a decision and gave them time to prepare and present their submissions on the locus standi point. After hearing the submissions I found myself unable to change my mind and gave my decision that I would not proceed further with the hearing and make a decision. Accordingly, I adjourned the matter sine die with liberty to restore after extraction of the grant. At the request of counsel I shall now explain the legal position.

Executors and administrators

Where the owner of any property has made a testamentary disposition, namely, a will, and has named an executor, though it remains ambulatory while he is alive, upon his death it becomes a declaration of his intentions as to how his properties are to be dealt with. More importantly it vests his properties in his executors upon his death. In respect of immovable properties the will, so to speak, is a specie of conveyance. In the result, the executor derives his authority and title from the will and is entitled to assert his power according to the terms and tenor of the will. There is no hiatus in the title. Title is kept alive and continuous by the act of the owner, namely, the will-maker.

The concept of continuity of title applies even when the owner dies without a will. The office of an administrator derives its status and title entirely from the grant of letters of administration and only from the time of its issue with the imprint of the seal of the court. In the case of a grant of letters of administration, in reality, there is a hiatus between the death of the person whose estate the administrator will represent and the issue of the grant. Until 1997 there was a legal fiction created by s 37 of the Probate and Administration Act (Cap 251) as it was before 1 October 1997: `Where a person dies intestate his movable and immovable property until administration is granted in respect thereof shall vest in the Chief Justice in the same manner and to the same extent as it vests in the Probate Judge in England`. It was a fiction because the Chief Justice had no duties and his supposed status and title evanesced the moment the grant was issued. From 1 October 1997, when a person dies intestate, his real and personal estate vests in the Public Trustee. however, the vesting by itself does not confer or impose on him any power, duty, right, equity, obligation or liability in respect of the estate. So the vesting of title on the Public Trustee is a fiction to maintain continuous title. The moment a grant of letters of administration is issued, title relates back to the time of death of the owner of the property and totally eclipses the status and title of the Public Trustee. See s 37 of the Probate and Administration Act (Cap 251). Thus the...