Order 15 r. 6A, 7(10(2), 9Civil Law Act 1956 – Sec 8(1)&(3)

Probate & Administration Act 1959

Proceedings for or Against Deceased’s Estate

ContentsSurvival of Cause of ActionsLimitation PeriodProcedure

Can a writ be issued in the name of the deceased plaintiff or deceased defendant?Dawson v Dover [1971] 1 QB 330Held:

A writ issued in such a manner is a nullity

Survival of Cause of ActionSec 8(1) CLA 19568.  Effect of death on certain causes of

action.(1) Subject to this section, on death of any

person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate:

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to any claim for damages on the ground of adultery.

Sec 8(1) CLA 19561. Cause of action survive on death of any

person.2. His estate could be sued or commence a

suit on his behalfNo cause of action survive on these

grounds: defamation, seduction, inducing spouse, claim damages on the ground of adultery.

When to commence the Action?Sec 8(3) of CLA 1956“No proceedings shall be maintainable in

respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless proceedings against him in respect of that cause of action either -

(a) where pending at the date of his death; or

(b) are taken not later than six months after his personal representative took out representation.”

Can a proceeding be commenced before grant of letters of administration is

obtained?

ProcedureOrder 15 r 6A RHC(1) where any person against whom an

action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.

Order 15 r 6A (1)Action may be brought against:i) if there is a grant of probate, against the

executor or executrix;ii) if there is a letter of administration,

against the administrator or administratrix;iii) if there is no grant of probate or letter of

administrator, against the estate of the deceased

How should action be brought against the deceased estate?O.15 r6A(2)“…an action brought against ‘the personal

representative of the A.B deceased’ shall be treated ….as having been brought against his estate.”

What is the status of action taken before grant of probate or letter of administration was made?

O.15 r 6A(3)“An action purporting to have been

commenced against a person shall be treated, if he was dead at its commencement, as having been commenced against his estate in accordance with paragraph (1), whether or not a grant of probate or administration was made before its commencement”

Rights of action of a Personal RepresentativeSection 59 of the Probate and

Administration Act 1959 (PAA)“Subject to any other written law, a

personal representative has the same powers to sue in respect of all causes of action that survive the deceased, and may exercise the same power for the recovery of debts due to him at the time of his death as the deceased had when living.”

Type of EstateTestate Estate

- There is a Will - Executor is named in the will- Duty of Executor to apply for

probateIntestate Estate

- No will- to appoint administrator- Probate & Administration Act will

apply

Issues relating to Testate Estate1. Whether the executor can commence a

suit before extracting the grant of probate?

2. Can he obtain judgment before the grant is extracted?

3. Can the Executor be sued before the grant is out or extracted?

Whether the executor can commence a suit before extracting the grant of probate?Meyappa Chetty v Subramaniam Chetty

(1916) 1 AC 603Held:

The executor can commence a suit before the grant of probate is out because the right to sue is vested upon him immediately after the testator died.

Can he obtained judgement before the grant is extracted?Meyappa Chetty v Subramaniam Chetty

(1916) 1 AC 603Held:

He cannot obtain any judgment before the grant of probate has been extracted or in his possession

Can the Executor be sued before the grant is out or extracted?

No because the executor named in the will may not want to be the executor.

Issues relating to Intestate estate1. Can an administrator commence a

suit before the letter of administration is extracted?

2. Can he be sued before a letter of administration is extracted?

Answer: No to both

AuthoritiesFor the first issue see the case of:

Ang Hoi Yin v Sim Sie yau [1969] 2 MLJ 3

For Second issue see the case of:Comptroller of Income Tax v Yan Tai Min [1965] 31 MLJ 255

Authorities

Ruhani Binti Mohiat & Anor v Abdul Karim Mat Ali & anor [1993] 3 CLJ 5 524

Yong Siew Choon v. Kerajaan Malaysia [2003] 2 CLJ 106

Case ScenarioDeceased died intestate. No personal

representative has been appointed to represent the estate and the plaintiff wants to sue his estate.

What should the Plaintiff do?

How to commence the Action?According to Sec 39 of PAA 1959“(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.”

- Corporation in Malaysia refers to the Official Assignee (OA)

StepsTo appoint official assignee in accordance

with s.39 of PAAThe plaintiff to issue the writ on the OANo judgment in default could be taken

against the OAThe case will be held in abeyance until a

personal representative is appointed.

What if a Plaintiff after commencement of the Action?O.15 r 7 (2) RHC

The court has discretion to order another person to be substituted and the proceedings to be continued.

Govt of Malaysia v Taib bin Abdul Rahman[1991] 2 CLJ 1101

O.15 r 7 (2)2) Where at any stage of the proceedings in any

cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first mentioned party.

An application for an order under this paragraph may be made ex parte.

Govt of Malaysia v Taib bin Abdul Rahman[1991] 2 CLJ 1101

A father died after he filed and action against the Government of Malaysia. His son agree to be made a party but later on change his mind.

Supreme Court held:[1] When at any stage of any proceedings,

a plaintiff dies intestate and his interests devolve or vest temporarily in the official administrator under s. 39 of the 1959 Act, then 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".

Held[2] The Court agreed with the

interpretation by the learned President Sessions Court as to the meaning of the SCR in particular rr. 7(2) and 9 in that the Rules are not concerned with the capacity of the person applying to be appointed as a party but that it merely gives the Court the power to appoint any person to proceed with a pending suit, for to interpret it otherwise would defeat the objective of r. 7(2) which is to avoid delay in the disposal of cases.