Westlaw Asia Delivery Summary

Request made by : IP POOL 1

Request made on : Wednesday, 09 September, 2020 at 15:33
HKT

Client ID : UniTel_WLA-1
Title : Ngau Ken Lock (simati) v Dalam Harta
Pesaka
Delivery selection : Current Document
Number of documents delivered : 1
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*1 Ngau Ken Lock (simati) v Dalam Harta Pesaka

High Court, Pahang
2 July 2002

[2001] AMEJ 0047

Petition No 32-29-2001
Ramly Ali, J,
Letters of administration de bonis non – Petition for letters of administration de bonis non for unadministered
estate of deceased – Whether petition should be granted – Whether petitioner the right person to be appointed as
sole administrator of estate – Petition allowed with costs – Probate and Administration Act 1959, ss 16 , 30

Cases Referred to —

1. Re Ramanathan s/o AR A Nachiappan [1998] 2 MLJ 90 page 99.

2. HSBC (M) Trustee Bhd. v. Kong Kim Hoh & Ors. [1999] 3 MLJ 383 page 396.
3. Re Grundy [1968] LR 1P & D 459.
4. Yap Kee Par v. Molly Yap & Ors. [1996] 4 MLJ 219.
5. Re S [1967] 2 ALL ER 150 .
6. Re Knight [1939] 3 ALL ER 928 .
7. In the Estate of Biggs [1966] 1 ALL ER 358.
8. In the Estate of Newham [1966] 3 ALL ER 681 .
9. Dampier v. Calson [1812] 2 Phil 54.
10. Iredale v. Ford [1859] 1 sw & Ir 305.

Legistations Referred to —

1. Rules of the High Court 1980 (RHC) — Order 71 rule 38 ; rule 4 (1) .
2. Probate and Administration Act 1959 (PAA 1959) — Section 16 ; Section 30 .

Other References

1. Probate and Administration in Singapore and Malaysia : Law and Practise, G. Raman — page 51 ;
page 70 ; page 73 ; page 74.
2. Tristram and Coote's Probate Practice, 28th. Edition page 432.
3. Halsbury's Law of England, 4th. Edition para 984 page 514.
4. Williams, Martimer and Sunnuck S Executor S, Administrators and Probate (16th. Edition, 1982)
page 324.

Ramly Ali J

Grounds of Judgment

There are two applications before this Court in the present proceedings namely:
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(i) enclosure 8, which is a petition by the Petitioner to be appointed the sole administrator of the estate
of the deceased (the late Dato' Ngau Ken Lock), under a grant of administration (with will annexed) de
bonis non; and
(ii) enclosure 14, which is an application by the Applicant to be appointed as a co-administrator de
bonis non jointly with the Petitioner.

Background
On 8/3/1978, the late Dato' Ngau Ken Lock died and left a will dated 16/6/1960. In the said will the late Dato'
Ngau Ken Lock appointed his wife Ee Tian (f) and his first son Ngau Boon Ming to be executors and trustees
of the will. In the said will also, the late Dato' Ngau Ken Lock devised to his wife Ee Tian (f) and his 5 sons
namely: Ngau Boon Ming; Ngau Boon Thai; Ngau Boon Kee; Ngau Boon Pin and Ngau Boon Kit, all his
movable and immovable properties situated in the Federation of Malaya to be held by them in equal shares after
payment of his funeral *3 testamentary expenses. In other words, there are 6 beneficiaries to the said will, each
will get # of the deceased properties, in equal shares. Both the Petitioner and the Applicant are brothers, i.e. the
5th. and 4th. sons of the deceased and both of them are beneficiaries to the said will.
The said executors, Ee Tiam (f) and Ngau Boon Ming were granted a grant of probate to jointly administer the
deceased's estate. The said Ee Tiam (f) died on 11/3/1996. After that the other executor, Ngau Boon Ming
became the sole administrator vide Court Order dated 19/6/1997. On 2/7/2001, the said sole administrator, Ngau
Boon Ming died, leaving behind the estate of the late Dato' Ngau Ken Lock not fully administered.
On 28/9/2001 the present Petitioner (who is the 5th. son and one of the beneficiaries to the estate of the late Dato'
Ngau Ken Lock) filed the present petition (vide enclosure 8) to apply for a letter of administration (with will
annexed) de bonis non in respect of the unadministered estate of the late Dato' Ngau Ken Lock. On 18/3/2002,
the Applicant (who is the 4th. son and also one of the beneficiaries of the same estate) filed the present
application (vide enclosure 14), for him to be appointed as co-administrator of the said estate.
The said Ee Tiam (f) (died on 11/3/1996) is being represented by the administrator — Ow Yong Mok. Ng *4
Boon Ming (died on 2/7/2001) is being represented by the beneficiaries — wife: Chang Vooi Chin @ Chung
Yoke Foong and children: Ngau Wu Chong and Ngam Lily. While, Ng Boon Thai (the 2nd. son of the late Dato'
Ngau Ken Lock who had died on 7/4/1987) is being represented by the administrator — Chong Kim Yew @
Chong Mai. The 3rd. son of the late Dato' Ngau Ken Lock, namely Ngau Boon Kee (who is also one of the
beneficiaries) still alive. All the beneficiaries or their administrators/representatives (except the Applicant) have
filed their respective affidavits to support the petition (vide enclosure 8) and to oppose the application (vide
enclosure 14).
The admistrators/representatives of the first three beneficiaries as well as the 4th. beneficiaries, Ngau Boon Kee,
have also filed their respective renunciation to be appointed as administrator de bonis non.
On 15/4/2002, the learned Senior Assistant Registrar ordered that this matter be referred to the Judge under
Order 71 rule 38, Rules of the High Court 1980 (RHC) , which says:

“ Every contested matter must be referred to a Judge who may dispose of the matter in dispute in a
summary manner or direct that the provisions of order 72 shall apply. ”

The Law on Administration De Bonis Non *5

The term “de bonis non” comes from the full Latin title of “de bonis non administratis” which means “of goods
not administered”. If a person to whom a grant of representation has been made has died leaving part or all of
the estate of the deceased unadministered then, unless there is a chain of executorship, a grant in respect of the
unadministered estate may be made to a new personal representative to enable the administration to be
completed. Such a grant is described as “ de bonis non ”, (see: Tristram and Coote's Probate Practice, 28th.
Edition page 432 ; and Re Ramanathan s/o AR A Nachiappan [1998] 2 MLJ 90 at page 99 ). As described by
Halsbury's Law of England, 4th. Edition para 984, page 514 :

“ Where a sole or last surviving executor dies intestate without having fully administered the testator's
estate, the deceased executor's administrator does not become the representative of the original testator,
and it is accordingly necessary to appoint an administrator to administer the goods of the original testator
left unadministered. This is a grant of administration cum testamento annexo de bonis non administratis
(that is “with the will annexed for unadministered estate.” ). ” *6
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The learned author of “Probate and Administration in Singapore and Malaysia: Law and Practice”, G. Raman
(at page 70) , states :

“ Sometimes a person who has taken out probate or letters of administration may die without completing
the administration of the estate. Where this happens, the person next entitled to the letters of representative
or any other suitable applicant, would be appointed by the Court to finalise the administration of the
unadministered part of the estate. The administrator in this sort of cases acts under the will of the deceased
in the event of testacy, or, if it is an intestate estate, he derives his authority from his appointment as
administrator and carries out the functions of his predecessors. The role of an administrator de bonis non
is restricted to finalising the administration of the estate. ”

In Malaysia, matters relating to Probate and Letters of Administration is governed by the Probate and
Administration Act 1959 (PAA 1959) . Section 16 of the Act provides :

Where —
(a) no executor is appointed by a will; *7
(b) the executor or all the executors appointed by will are legally incapable of acting as such, or
have renounced ;
(c) no executor survives the testator ;
(d) all the executors die before obtaining probate or before having administered all the estate of the
deceased ; or
(e) the executors appointed by any will do not appear and extract probate,
letters of administration with the will annexed may be granted to such person or persons as the Court
deems fittest to administer the estate :

Provided that a prior right to the grant shall belong to the following persons in the following order :
(i) a universal or residuary legatee ;
(ii) a personal representative of a deceased universal or residuary legatee ;
(iii) such person or persons, being beneficiaries under the will, as would have been entitled to a
grant of letters of administration if the deceased had died intestate ;
(iv) a legatee having a beneficial interest ; and
(v) a creditor of the deceased. ”

Section 30 of PAA 1959 further provides : *8

In granting administration the Court shall have regard to the rights of all persons interested in the estate
of the deceased person or in the proceeds of sale thereof, and, in particular, administration with the will
annexed may be granted to a devisee or legatee; and in regard to land settled previously to the death of the
deceased, and not by his will, administration may be granted to the trustees of the settlement; and any such
administration may be limited in any way the Court thinks fit :

Provided that, where the deceased died wholly intestate as to his estate, administration shall, if application
is made for the purpose, be granted to some one or more of the persons interested in the residuary estate of
the deceased, unless by reason of the insolvency of the estate or other special circumstances the Court
thinks it expedient to grant administration to some other person. ”

By reason of section 16 of PAA 1959 , both the Petitioner and the Applicant fall under category (iii) of the
‘proviso’ to section 16 and are equally entitled in the same order of priority to be appointed administrator de
bonis non. However, section 16 also provides that “letters of administration with the will annexed may be
granted to such person or persons as the Court deems fittest to administer the estate. ” *9
The Court has a wide discretion as to whom it shall grant letter of administration. Both the PAA 1959 and the
RHC 1980 , give a wide power to the Court in exercising its authority in the appointment of an administrator. In
fact, Order 71 rule 4 (1) of the RHC 1980 provides that “the Registrar does not allow any grant to be issued
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until all enquiries which he may see fit to make have been answered to his satisfaction”.
Section 30 PAA 1959 gives the court a wide power and discretion as to persons to whom administration is to be
granted. This enables the court to pass over a person otherwise entitled to a grant. This, has also been stressed
by R.K Nathan J. in the case of HSBC (M) Trustee Bhd. v. Kong Kim Hoh & Ors. [1999] 3 MLJ 383 (at page
396). As with all discretion, it has to be exercised judiciously and in accordance with established principle. One
of the established principle is that this matter which has been referred to this Court under Order 71 rule 38 of the
RHC 1980 , should be dealt with in a summary manner.
Another principle to be considered is that the estate of the deceased, which is the subject matter of the present
applications must be administered expeditiously and economically. This principle has been established as early
as 1868 in the case Re Grundy [1868] LR 1 P & D 459 and followed by Vincent Ng J. in *10 Yap Kee Par v.
Molly Yap & Ors. [1996] 4 MLJ 219 . In that case, (Yap Kee Par) the Judge said :

“ One object which the court keeps in view is the expeditious and economical administration of estates of
deceased persons (see Re Grundy [1868] LR 1 P & D 459 ). No broad rule of law can be laid down as to
what the special circumstances are which enable the court to pass over a person otherwise entitled to
grant, each case must be decided upon its own merits, though the special circumstances ought to be
confined to only circumstances directly affecting the administration of the estate (see Re S [1967] 2 ALL
ER 150 , Re Knight [1939] 3 ALL ER 928 ). Indeed in In the Estate of Biggs [1966] 1 ALL ER 358 , a
grant of LA to the deceased's niece was made, passing over an executor who had intermeddled but refused
to prove the will. And, in In the Estate of Newsham [1966] 3 ALL ER 681 , a grant was made, passing
over a widow, so as not to prejudice an insurance claim. ( See also G Raman Probate and Administration
in Singapore and Malaysia, Law and Practice at page 51). ”

It is also an established principle that the Court will normally recognize the wishes of the majority of the *11
beneficiaries. Section 30 of PAA 1959 clearly envisages that “ in granting administration the Court shall have
regards of all persons interested in the estate of the deceased person.” This principle is both correct and sound. It
seeks to achieve maximum harmony among competing interests. In his book “ Probate And Administration in
Singapore and Malaysia : Law and Practice , the learned author G. Raman (at page 74), has expressed :

“ Quite often, the Court will be required to choose between competing applicants though the applicants
may come from the same class. In such instances, the court will look into that section or those numbers of
the class who have a larger interest than the competing group. Therefore the majority interest will
normally be recognised and granted the letters of representation. ”

The learned author cited the cases of Dampier v. Calson [1812] 2 Phill 54 ; and Iredale v. Ford [1859] 1 Sw &
Tr 305 to support this preposition.
Applying the above principles and law to the present applications before this Court, I have to keep in view the
requirement under section 16 of PAA 1959 i.e. who is the person or persons the Court deems fittest to
administer the estate. The Petitioner may be deemed ‘fit’ *12 to administer. The Applicant also may be deemed
‘fit’ to do the same. Both of them may also be deemed ‘fit’ to jointly administer the estate as co-administer. The
task of this Court is to decide and determine, based on the above principles as well after having regard to the
rights and interests of all the other beneficiaries as stipulated under section 30 of PAA 1959 , who is the “fittest”
to administer the said estate. There are 3 alternatives in the present applications, namely :
(i) the Petitioner as sole administrator ;
(ii) the Applicant as sole administrator ; and
(iii) both the Petitioner and the Applicant as co-administrators.

Eventhough the Applicant is the elder brother of the Petitioner, it is not necessary that he be appointed the
administrator. His interest in the estate as well of the wishes of the other beneficiaries must also be considered.
There are certain situations where an applicant may be passed over for someone else who is more ‘fit’ to be
granted the administration. In “ Probate and Administration in Singapore and Malaysia: Law and Practice ” by
G. Raman (at page 73), it is stated that :

“ The normal situations where this may occur are:

(1) bad character , financial position or ineptitude for business of an applicant ; *13
(2) the fact that he had an interest incompatible with the proper administration of the estate ;
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(3) his minor interest in the estate ;

(4) he is personally objectionable to other persons entitled to share in the estate. ”

It is also stated in “ Williams, Martimer and Sunnucks Executors, Administrators and Probate (16th. Edition,
1982) ” — at page 324 that an applicant may be passed over for some one else if he is personally objectionable
to other persons entitled to share in the estate.
In the present case, the Applicant's share in the estate (as provided under the said will) is # The other
beneficiaries (including the Petitioner) are entitled to # shares. Of course the Applicant's interest is a minority
interest. The other beneficiaries (except the Applicant) either personally or through
administrators/representatives have sworn their respective affidavits that they have confidence in the Petitioner
to administer the said estate and supported the Petitioner's petition (vide enclosure 8) and opposed the
Applicant's application (vide enclose 14). It is a reality that a ‘leader’ or ‘representative’ who does not enjoy the
trust, support and confidence of the people whom he leads or represents would be a disaster, however elevated
his academic or job acclaim. This is also true for an administrator as in the present case. *14
In the present case, there are evidence (as contained in the Petitioner's affidavit — enclosure 27 particularly
paragraphs 10 and 11) to show that the Applicant is not co-operative in dealing with this matter before this. The
Applicant has migrated and was residing in Australia. At the time of the last executor, Ngau Boon Ming was in
critical condition (before he died on 2.7.2001) attempts were made by the family members to resolvee some
problems relating to the estate and to appoint a new administrator. Sufficient notice was given to the Applicant
(who was then residing in Victoria, Australia). But the Applicant has failed to respond and to cooperate until the
said Ngau Boon Ming died. In fact the Petitioner went to see the Applicant in Australia to convey the wishes of
the other family members over this matter, but the Applicant's response was negative. These evidence has not
not been challenged or contradicted by the Applicant in his affidavit. From the affidavit evidence, it is clear that
it has become common knowledge among the beneficiaries and family members that the Applicant could not
and will not cooperate with the Petitioner in administering the estate.
In the circumstances, the court is satisfied that the Applicant is not the ‘fittest’ person to be appointed the
sole-administrator of the estate of the late Dato' Ngau Ken Lock. He is also not fit to be appointed as
co-administrator of the said estate. To appoint him as the sole-administrator may not be to the advantage of all
the beneficiaries. It may lead to disaster and collosal *15 blunder. To appoint him as co-administrator together
with the Petitioner, under the present background, may also lead to the same result i.e. disaster and collosal
blunder. It is just like allowing two political parties of equal strength but of totally different and conflicting
ideologies, to run a single government to administer a country. We all know where it will lead to. Only miracle
can save their destination. The estate may not be administered expeditiously and economically.
The interests of the majority beneficiaries may be in jeopardy. Therefore, the only alternative left is to appoint
the Petitioner, who has received the support and confidence of all the other beneficiaries (either directly or
through their respective administrator/representatives), as the sole administrator as petitioned (vide enclosure 8).
The estate of the late Dato' Ngau Ken Lock is still left unadministered. The first three beneficiaries have passed
away and their respective beneficiaries (in their own respective estates) are obviously anxious to finalise the
distribution of the respective estates among their respective beneficiaries. Some one has to be appointed an
administrator de bonis non in respect of the estate of the late Dato' Ngau Ken Lock. The estate has to be
administered properly and cannot be left in idle and unadministered. Therefore, in the circumstances of the
present case, the court is satisfied that the Petitioner is the ‘fittest’ person to be appointed as the
sole-administrator of the said estate. *16

Requirement of lodgment of Caveat

The Petitioner has submitted that any party who intends to object to a petition must first enter a caveat pursuant
to Order 71 rule 37 of the RHC 1980 . He further submitted that since the Applicant has failed to enter a caveat,
the petition is to be treated as if it has not been objected to; and accordingly the remaining issue is whether or
not the Applicant should be appointed co-administrator.
This Court is of the view that the above contention by the Petitioner is misconceived, in that even if the
Applicant has not filed any caveat as required under Order 71 rule 37 (1) of the RHC 1980 , it does not preclude
the Applicant from filing the present Summons-in-Chambers (enclosure 14) and it does not preclude the Court
from dealing with the said summons.
Order 71 rule 37 (1) of the RHC 1980 provides that “any person who wishes to ensure that no grant is made
without notice to himself may enter caveat”.
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A caveat is a waring or an entry made at the Probate Registry or Court to prevent a certain step being taken
without previous notice to the person entering the caveat (the caveator). Any person having or claiming an
interest in the estate of a deceased person may enter a caveat at the Probate Registry to prevent a grant of
representation *17 issuing in respect of that estate without prior reference to him. Usually the applicant would
warn the caveator and after appearance has been entered to the warning, issue a writ. Thereafter the action
becomes contentious. (see: “ The Law of Wills Probate Administration and Succession in Malaysia and
Singapore ” by Mahinder Singh Sidhu at page 226).
In the present case, the Applicant has not entered a caveat but has applied to this Court (vide enclosure 14) to be
appointed as co-administrator de bonis non. The Applicant is allowed to do so under Order 71 rule 22 (2) and
(4) of the RHC 1980 , which provides :

“ 22.
(2) — A dispute between persons entitled to a grant in the same degree must be brought by
summons before the Registrar.
(4) — If the issue of a summons under this rule is known to the Registrar, he shall not allow any
grant to be extracted until such summons is finally disposed of. ”

The Applicant and the Petitioner in the present case are both eligible to a grant, and the Applicant cannot agree
to the Petitioner being appointed the sole-administrator. The Petitioner on the other hand cannot agree to the
Applicant being appointed co-administrator. Therefore, a dispute *18 has arisen and this matter fall under
Order 71 rule 22 (2) (4) of the RHC 1980 . That being the case, the Applicant's application (vide enclosure 14)
was rightly filed. This Court is empowered to hear and determine the issues or disputes raised on merits.
However, on merits, as the Court has decided earlier, the Petitioner is the ‘fittest’ person to be appointed the
sole-administrator of the said estate.

Conclusion
Based on the above consideration, it is my judgment that the Petitioner's application (vide enclosure 8) be
allowed with costs; and the Applicant's application (vide enclosure 14) be dismissed with costs. *19

Representation
Francis Tan (Rosni, Francis Tan & Ho) for petitioner — T H Goh (Azhar & Co) for the applicant
July 2, 2002
*20
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