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

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 22 November 1995
• Neutral Citation: [1995] SGHC 281
• Docket Number: Suit No 1500 of 1995 (Summonses in Chambers Nos 5530 and 5860 of 1995)
• Date: 22 November 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Sim Bock Eng and Edwin Tay (Wong Partnership)
• Citation: [1995] SGHC 281
• Defendant Counsel: Tan Soo Kiang and Khoo Boo Jin (Wee Swee Teow & Co)
• Court: High Court (Singapore)
• Subject Matter: Whether beneficiaries could sue where letters of administration had been ordered but not extracted,Probate and Administration,Parties,Power of court to appoint party to sue,Administrator,Locus standi,s 37(2) Probate and Administration Act (Cap 251),Letters of administration granted but not extracted,O 15 r 15(1) Rules of the Supreme Court,Whether special circumstances existed to allow action,Capacity to sue,Grant of letters of administration,Civil Procedure,Action to protect property of estate

Background

According to her statement of claim, in 1952 the plaintiff was married to Theng Chee Khim (`Theng` or `the deceased`) in Singapore according to Chinese customary rites. Thereafter, the parties lived together and had six children. On 31 December 1964, however, Theng purported to marry the defendant at the Registry of Marriages. He then set up house with the defendant and remained with her and his children by her until he died on 28 June 1995. Theng died intestate. In the statement of claim, it is asserted that the marriage between Theng and the defendant was void in that it was a polygamous marriage entered into after the Women`s Charter (Cap 353) came into force.

The plaintiff, asserting that she was the lawful widow of the deceased, applied for letters of administration to Theng`s estate and the Registrar of the Supreme Court granted her petition on 11 August 1995. The letters of administration have, however, yet to be extracted. On 30 August 1995, the plaintiff started this action. By her endorsement of claim, she stated that her claim was made as administratrix of the estate of the deceased and as such she claimed, inter alia, a declaration that certain real property which had once stood in the name of the defendant in fact belonged to the deceased and was held by the defendant on trust for the deceased. According to the statement of claim, the property concerned comprises the house known as No 25 Lorong 32 Geylang (the Lorong 32 property) which the deceased purchased in 1978 and the property known as Nos 1/1A and 3/3A Lorong 33 Geylang (the Lorong 33 property) which he bought in 1973. The plaintiff asserted that although both properties were conveyed into the name of the defendant, the consideration for their purchase was provided solely by the deceased with no contribution from the defendant and that, therefore, the defendant held the same on a resulting trust for the deceased.

By the time the action was started, both properties had been sold. The Lorong 32 property was sold as long ago as 1981 but the Lorong 33 property was only sold in January 1995. The sale price was some $2.65m and it was clear that the action was basically directed at this money. In fact, as soon as the writ was issued the plaintiff applied, on an ex parte basis, for an injunction restraining the defendant from disposing of or dealing with any of her assets within Singapore up to a value of $3.5m and particularly with the balance of the proceeds of sale of the Lorong 33 property. The plaintiff succeeded in her ex parte application and the injunction order was granted on 30 August 1995 itself.

The plaintiff`s competence to maintain the action

On 7 September 1995, the defendant applied to set aside the writ of summons and endorsement of claim and for the discharge of the injunction. The basis of this application was the defendant`s contention that the writ was a nullity in that, at the time it was issued, the plaintiff had had no capacity to commence the action as administratrix of the estate of the deceased in as much as she had not extracted the grant of letters of administration. The essential submission was that a person who has applied for letters of administration only obtains the status and the powers of an administrator when the grant bearing the seal of the court has been issued and that the making of the order for the grant by the court is insufficient for that purpose.

Mr Tan, counsel for the defendant, cited a number of authorities in support of his contention. The first case on which he relied, Meyappa Chetty v Supramanian Chetty [1916] 1 AC 603, was a decision of the Privy Council on appeal from the Supreme Court of the Straits Settlements. Whilst the question at issue was as to the capacity of the executor of a will capable of probate in the Straits Settlements to institute a law suit, in the course of his judgment, Lord Parker referred to what he described as the `well-established rule` that an administrator derives title solely under his grant and cannot, therefore, institute an action as administrator before he gets his grant.

More directly on point was P Govindasamy Pillay & Sons v Lok Seng Chai & Ors [1961] MLJ 89 . Ismail Khan J, sitting in the High Court of Malaysia, held that a person who has obtained a grant of letters of administration but who has not extracted such grant cannot be sued in a representative capacity. It is the grant under seal and not the order of the court that the grant should issue which confers status. Ismail Khan J relied on the definition of the expression `letters of administration` in the Malaysian Probate and Administration Ordinance which is substantially the same as the definition of that term in our own Probate and Administration Act (Cap 251) (the Act). The operative words are that `"probate" means a grant under the seal of the court issuing the same ...,` and as Ismail Khan J said (at p 90):

[those words] mean that when a court makes a grant, what is contemplated is a grant under its seal, and until the grant is extracted the order of a court that the letters of administration do issue is only a conditional order subject to the compliance by the petitioner with the further requirements as to the provisions of two sureties to the administration bond or obtaining an order of the court to dispense which such sureties, payment of estate duty, or obtaining a certificate of postponement thereof and swearing the administration bond along with the surety. It is indeed a direction not to issue grant until those conditions are fulfilled.

Ms Sim, for the plaintiff, urged the court not to follow Govindasamy Pillay `s case but to be guided instead by Chia Foon Sian & Anor v Lam Chew Fah & Anor [1955] MLJ 203 , which was a decision of the High Court of Singapore holding that the legal authority of an administrator was acquired on the grant of letters of administration by the court. Meyappa Chetty `scase was distinguished on the basis that the procedure in England did not provide for a preliminary adjudication on a petition for administration as was the case in Singapore.

This very issue as to whether the correct position was that set out in Chia Foon Sian `s case or that followed in Govindasamy Pillay and Meyappa Chetty came up for decision in this court in Singapore Gems Co v The Personal Representatives for Akber Ali (deceased) [1992] 2 SLR 254 . Chao Hick Tin J considered the authorities in detail and noted the diversion in views which I have mentioned. His Honour concluded (at p 259):

Whilst the Malaysian authorities are not binding on me and are only of persuasive authority, I accepted the reasoning of Ismail Khan J in Govindasamy Pillay that an administrator has not clothed himself with that status until he has extracted that grant. It seemed clear to me that what was stated by Whitton J in Chia Foon Sian was just obiter, as the real issue in that case concerned the validation of payments made to an executor de son tort who later was appointed administrator. In my opinion, the views of Whitton J in Chia Foon Sian would run counter to the definition of the term `letters of administration` in the Probate and Administration Act (Cap 251) ...`

With respect, I agreed with Chao Hick Tin J`s reasoning and decision.

Ms Sim, however, also sought to persuade me that Meyappa Chetty , Govindasamy Pillay and the subsequent Malaysian cases which followed that decision should not be adopted because they had been based on the old wording of the Act. She pointed that according to the present English legislation which is the same as the Singapore provisions which were in force when these various cases were decided, where a person dies intestate, his real and personal estate vests in the probate judge until administration is granted in respect of the estate. The present Singapore position is different in that the consequence of s 37(1) and (2) of the Act is that, whilst on death the property of an intestate vests in the Chief Justice, on the making of the order for the grant, the property immediately vests in the administrator. Her argument was that if the property of the intestate vested in the administrator when the court order was made, the administrator should immediately be able to take an action on behalf of the estate. I rejected this argument as it was my view that if the legislators in amending the Act had wanted to effect a significant change in the law in relation to the status of administrators they would have done so specifically rather than dealt only with the vesting of property.

At the end of the hearing, I agreed that on 30 August 1995 when the writ was issued and the injunction obtained, the plaintiff did not have the necessary authority to sue as administrator of the estate. Subsequently, Mr Tan brought to my attention the case of Chay Chong Hwa & Ors v Seah Mary [1984] 2 MLJ 251 where our Court of Appeal in a judgment delivered by LP Thean J [as he then was] had stated in relation to s 37(2) (at p 254):

Plainly this section concerns only with the vesting of property, movable and immovable, of a person dying intestate so as to avoid the situation where the property of the deceased is not vested in anyone. The mere vesting of such property by operation of law does not authorize an administrator to deal with the same. He must proceed to extract the grant of letters of administration and only upon such grant being extracted is he clothed with the authority and power to deal with the property of the deceased.

This statement was specifically approved by the Privy Council when Chay`s case went up on appeal before it (see [1987] 1 MLJ 173 at p 175). This authority has, in my view, put the Singapore position beyond any further doubt or cavil.

Subsequent events

The defendant`s application was heard on the morning of 19 September 1995. Whilst the natural consequence of my acceptance of the defendant`s submission on the plaintiff`s status was...