RESEARCH ON TRUST FOR INTESTATE SETTLOR IN AN APPEAL.

BRIEF FACTS.
Settlor dies before the hearing of appeal. The trust no more exists. He dies
intestate. Meaning there is a will but no executor named. There are no
next of kin.
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S. 2 of Probate & Administration Act : intestate includes a person

who leaves a will but dies intestate as to some beneficial interest in
his movable or immovable property;

The other two plaintiffs (trustees) are applying for a probate action.
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S. 2 of Probate & Administration Act : probate action means a

cause or matter in which a petition for probate or administration is
contested by any person, and includes an application to alter or
revoke any grant of representation; probate means a grant under
the seal of the Court authorizing the executor or executors therein
named to administer the testators estate;

QUESTION: WHAT HAPPENS TO THE PROCEEDING NOW?

ISSUE 1:

WHETHER AN EXECUTOR OR A REPRESENTATIVE IS NEEDED

TO BE A PARTY TO THE PROCEEDING ON BEHALF OF THE
SETTLOR?

O. 15 R 7 OF RULES OF COURT.
SITUATION 1: JOINT ACTION.
Where the course of action survives and one of several plaintiffs dies and
the action is a joint one, the surviving plaintiff may continue the action
without adding the personal representatives of the deceased plaintiff.
SITUATION 2: NON-JOINT ACTION.
If the course of action is not a joint one, the personal representative of the
deceased plaintiff may obtain an order to carry on the proceedings.
APPEAL MATTERS.
1)

The same rule applies to appeals as well.

Case in point: FOO NGIT TSE V YEW CHEE SEONG [1934] MLJ 204
Before the memorandum of appeal was filed he died. The Will named the
Applicant and Foo Yin Chiew as Executors. There was insufficient time to prove
the Will and extract probate before the date for filing the memorandum of appeal.
The Applicant applied for an order that the proceedings in the Appeal might be
carried on and prosecuted by the Applicant and Foo Yin Chiew as personal
representatives of the deceased in like manner as such proceedings might have
been carried on and prosecuted by the deceased plaintiff-appellant if he had not
died, and for an order substituting the names of the Executors in place of that of
the deceased plaintiff-appellant and amending the proceedings accordingly.

2)

When the Settlor dies intestate, then hes interest devolve or vest
temporarily in the official administrator.

Case in point: KERAJAAN MALAYSIA V YONG SIEW CHOON [2006] 1 MLJ 1

In its legal sense the word 'executor' is a reference to a person who has
obtained the grant of probate or of letters of administration of a deceased
person. Such a person has the capacity to sue or to be sued. It is a general
rule of construction that in construing Acts of Parliament words must be
taken in their legal sense unless a contrary intention appears
(see Commissioner for Special Purposes in Income-tax v John Frederick
Pemsel[189194] All ER Rep 28; Chesterman v Federal Commissioner of
Taxation [1926] AC 128; Laurence Arthur Adamson v Melbourne &
Metropolitan Board of Works AIR1929 PC 181). Thus the word 'executor' in
the Act must be interpreted in its legal sense in the absence of any special
meaning being ascribed to it. However, s 2 of the Act prescribes that an
'executor' means the executor, administrator or other persons
administering or managing the estate of a deceased person.
The reference to 'executor' and 'administrator' in the definition, being
persons who are legally appointed, only means that the 'person
administering or managing the estate of a deceased person' is not one
who is so appointed. The Act has therefore given an extended meaning to
the word 'executor' by including in its definition a person administering or
managing the estate of a deceased person. As the definition is clear and
unambiguous it cannot be ignored. As Bindra's Interpretation of
Statutes (7th Ed) says at p 39:
When a Legislature defines the language it uses, its definition is binding
upon the Court and of the word used. It is not for the Court to ignore the
statutory definition and proceed to try and extract the true meaning of the
expression independently of it (Nand Rao v Arunachalam AIR1940 Mad
385). If the Legislature's intention is clear and unambiguous, it is obviously
outside the jurisdiction of the Court to correct or amend the definition in
the interpretation clause (Mordhwaj Singh v State of UP24).
3)

Until the Letter of Administration or Probate is granted the court has

the discretion to order that his son or some other person be made a
party under this provision if the court thinks it is necessary in order
to ensure that all matters in dispute in the course or matter maybe
completely determined and adjudicated upon.

Statutory provision: Probate and Administration Act, s 39

Vesting of property of an intestate
39. (1) Where a person dies intestate his movable and immovable
property until administration is granted in respect thereof shall vest in the
Corporation in the same manner and to the same extent as it vests in the
Probate Judge in England.
(2) On the making of an order for a grant of administration by the Court all
such property shall vest in the administrator.
Explanation: An administrators authority only arises when letters of
administrative or probate is granted. Until then the administrator cannot
commence a legal proceedings on behalf of the estates. Therefore, upon a
person who dies intestate, the estate vest in the Corporation (Amanah

Raya Berhad) until letters of administration is granted to the administrator

or administrators.
Case in point: CAPITAL INSURANCE BHD v KASIM BIN MOHD ALI
[1996] 2 MLJ 425
We dealt with Mr BS Sidhu's applications first and in relation to the
application for substitution, when it was pointed out to Mr BS Sidhu, that
the only way substitution could be done where a deceased had died
intestate is through the widow obtaining letters of administration of her
husband's estate, and in this case the widow has not yet applied for letters
of administration, Mr BS Sidhu readily agreed to withdraw the application.
In any event, on the death of the respondent, his estate devolves by
operation of law on the official assignee under s 39 of the Probate and
Case in point: GOVERNMENT OF MALAYSIA V TAIB BIN ABDUL
RAHMAN [1991] 2 MLJ 174
We need only to add that although under s 39 of the Probate and
Administration Act 1959, the interests of the deceased plaintiff vest in the
Official Administrator (since he died intestate), it does not mean that
pending an order for a grant of administration, only the Official
Administrator could make an application to be made a party under O 8 r
7(2). In our opinion, such an interpretation would defeat the very object of
r 7(2) which is to avoid delay in the disposal of cases where the interests
or liabilities of any party to a pending proceeding vest temporarily upon
some other person, such as the Official Administrator. In our view the
narrow interpretation advocated by learned counsel for the appellants has
its root in the misinterpretation of the word 'other person' in the latter part
of r 7(2) as referring to the words 'some other person' in the earlier part of
the provision. It seems clear that the word 'that' should not be read as a
demonstrative pronoun referring to the earlier mentioned 'some other
person' upon whom the interest or liability of a party devolves or vests but
should be read as mere conjunction introducing the words 'other person'.
Thus, it is our conclusion that, when at any stage of any proceedings, the
plaintiff dies intestate, and his interests devolve or vest temporarily in the
Official Assignee under s 39, until administration or probate is granted, the
court has the discretion to order that his son or any other person be made
a party under O 8 r 7(2), if the court 'thinks it necessary in order to ensure
that all matters in dispute in the cause or matter may be completely
determined and adjudicated upon'.