Wong Moy (administratrix of the estate of Theng Chee Khim, deceased) v Soo Ah Choy

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 13 September 1996
• Neutral Citation: [1996] SGCA 52
• Docket Number: Civil Appeal No 23 of 1996
• Date: 13 September 1996
• Published date: 19 September 2003
• Year: 1996
• Plaintiff Counsel: Edwin Tay (Edwin Tay & Co)
• Citation: [1996] SGCA 52
• Defendant Counsel: Tan Soo Kiang and Khoo Boo Jin (Wee Swee Teow & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Letters of administration granted but not yet extracted,Whether special circumstances existed allowing action to be maintained,Parties,Probate and Administration,Whether administratrix could bring action qua a beneficiary,Action to protect property belonging to estate,Capacity of beneficiaries to maintain action pending extraction of grant of letters of administration,Whether special circumstances existed to allow action,Intestate succession,Action o protect property belonging to estate,Civil Procedure,Locus standi

This was an appeal against a decision of the High Court disallowing an amendment to the appellant`s writ and statement of claim and striking out the writ and the statement of claim for want of capacity on the part of the appellant to sue. At the conclusion of the hearing we allowed the appeal, reinstated the writ and statement of claim and gave leave to amend the writ and statement of claim and made other consequential orders. We now give our reasons.

The facts

The material facts were as follows. The appellant claimed that in 1952 she was married to one Theng Chee Khim (Theng) in Singapore according to Chinese customary rites, and from this marriage they had six children. On 31 December 1964, Theng purported to marry the respondent at the Registry of Marriages and thereafter set up home with the respondent and remained with her and his children by her until he passed away on 28 June 1995. He died intestate. The appellant claimed that the marriage between Theng and the respondent was a polygamous marriage, in violation of s 4 of the Women`s Charter (Cap 353), and was therefore invalid.

Soon after the death of Theng, the appellant applied for letters of administration to Theng`s estate, asserting that she was his lawful widow. She obtained a grant of letters of administration to the estate of Theng on 11 August 1995, but the grant has yet to be extracted.

On 30 August 1995 the appellant commenced an action in Suit 1500 of 1995 in the High Court against the respondent. She sued as the administratrix of the estate of Theng and sought, inter alia, a declaration that certain immovable property which had once stood in the name of the respondent in fact belonged to Theng and was held by the respondent on trust for the deceased. According to the statement of claim, the property concerned comprised the house known as No 25 Lorong 32 Geylang (the Lorong 32 property) which Theng bought in 1978 and the premises known as Nos 1/1A and 3/3A Lorong 33 Geylang (the Lorong 33 property) which he bought in 1973. The appellant asserted that although both properties were conveyed to the respondent, the consideration for their purchase was provided solely by Theng with no contribution from the respondent and that, therefore, the respondent held the same on a resulting trust for Theng. She sought an enquiry and account as regards the properties, and an order for the return of all properties held by the respondent on trust for Theng.

Both the properties had been sold. The Lorong 32 property was sold in April 1981 for $290,000 and the Lorong 33 property was sold in January 1995 for $2.65m. The claim by the appellant was principally directed at the proceeds of sale. The appellant alleged that the sale proceeds were held by the respondent on a resulting trust for Theng`s estate.

Upon the issue of the writ, the appellant applied ex parte for an interim injunction restraining the respondent from disposing or otherwise dealing with her assets. It was alleged that there was a serious likelihood of the sale proceeds and other assets being disposed of or dissipated pending the extraction of the grant of the letters of administration. In particular, the appellant deposed to her belief that the respondent had dealt with, and continued to deal with, the sale proceeds as if they were wholly her own. Her application succeeded and the injunction was granted on 30 August 1995. The injunction restrained the respondent from disposing of or dealing with any of her assets within Singapore up to a value of $3.5m. More specifically, the respondent was prohibited from dealing with the balance of the proceeds of sale of the properties, pending the determination of the beneficial ownership of such properties by the court. The respondent in turn filed a caveat against the appellant`s grant of the letters of administration, which will now be the subject of a contested probate action, No 1491 of 1995.

The respondent subsequently applied to the High Court to discharge the injunction, and also to strike out the appellant`s writ of summons and statement of claim. This was made on the basis that the appellant lacked the capacity to sue as she had not extracted the grant of letters of administration to the estate of Theng, and as such, the writ was a nullity. The application was heard before a judge in chambers. The learned judge accepted the respondent`s submission that the appellant had no capacity to sue as the administratrix of the estate of Theng as she had not extracted the grant of letters of administration and agreed that the interim injunction should be discharged. However, the learned judge suspended the order discharging the injunction until 11 October 1995 pending the filing of an affidavit by the respondent disclosing her assets to the court. At that stage, the learned judge also refrained from striking out the writ and statement of claim; she adjourned the hearing so as to afford the appellant an opportunity to consider whether she could maintain the action in some capacity other than that of an administratrix.

In the event, the appellant filed an application, as subsequently amended, in which she sought, inter alia, an order that she be appointed to represent for the purposes of that application her six children who might be beneficially interested in the estate of the deceased, and that she be at liberty to amend the writ of summons and statement of claim in the manner set forth in a proposed statement of claim attached to the application. The application came on for hearing before the learned judge. It was first heard on 11 October 1995, and at the conclusion the learned judge disallowed the application. Consequently, the appellant`s writ of summons and statement of claim were struck out, and the injunction was discharged.

Very soon thereafter the appellant`s then solicitors came to know of the recent decision of Chao Hick Tin J in Omar Ali bin Mohd & Ors v Syed Jafaralsadeg bin Abdulkadir Alhadad & Ors [1995] 3 SLR 388. They took the view that this decision provided support for their application, and on 7 November 1995, the appellant`s solicitors wrote to the Registrar requesting for further arguments. The learned judge acceded to the request and heard further arguments on 21 November 1995, but at the conclusion she affirmed her earlier decision. By then, the appellant was already out of time for filing the notice of appeal.

On 14 December 1995, the appellant filed a motion for an extension of time to file an appeal. The motion was granted by this court on 5 February 1996 and following that the appellant proceeded with the appeal against the decision of the learned judge.

Issues on appeal

The primary issue before us was whether the appellant qua a beneficiary of the estate of Theng was entitled to institute an action against the respondent to protect the assets of the estate of Theng. As beneficiaries of the estate of Theng, the appellant and her children have no equitable or beneficial interest in any particular asset comprised in that estate, which is as yet unadministered. This has been laid down by decisions of established authority, and we need to refer only to the case of Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694, which was a decision of the Privy Council on an appeal from the High Court of Australia. That case concerned the question of succession duty payable on the interest of the deceased`s wife in her husband`s estate. Under the will of the husband, the wife was entitled to one-third of the residuary estate of the husband. She died two years after her husband`s death and at the date of her death, her husband`s estate was still in the course of administration and the question arose whether the estate of the wife had an equitable interest in the estate of the husband. It was held that her estate had no such interest and therefore was not chargeable under the Queensland Succession and Probate Duties Acts 1892-1955. In the course of his judgment, Viscount Radcliffe said at p 713:

... If `by beneficial interest in the items` it is intended to suggest that such beneficiaries have any property right at all in any of those items, the proposition cannot be accepted as either elementary or fundamental. It is, as has been shown, contrary to the principles of equity. But, on the other hand, if the meaning is only that such beneficiaries are not without legal remedy during the course of administration to secure that the assets are properly dealt with and the rights that they hope will accrue to them in the future are safeguarded, the proposition is no doubt correct. They can be said, therefore, to have an interest in respect of the assets, or even a beneficial interest in the assets, so long as it is understood in what sense the word `interest` is used in such a context.

It does not follow from this that a beneficiary of an estate which is unadministered or under administration has no legal remedy. He or she may in certain circumstances institute action to recover assets of the estate. Viscount Radcliffe referred to cases in the equity courts in which a creditor or pecuniary or residuary legatee was allowed to follow and recover assets which had been improperly abstracted from an estate. His Lordship said at p 714:

The basis of such proceedings is that they are taken on behalf of the estate and, if they are successful, they can only result in the lost property being restored to the estate for use in the due course of administration. Thus, while they assert the beneficiary`s right of remedy, they assert the estate`s right of property, not the property right of creditor or legatee; indeed, the usual situation in which such an action has to be launched is that in which the executor himself, the proper guardian of the estate, is in default, and thus his rights have to be put in motion by some other person on behalf of the estate.

The question is in what circumstances then could the appellant and her...