A descendant of a sibling who pre-deceased the intestate is not entitled to claim the intestate's estate under the Distribution Act 1958.

Introduction

[1] In this case, the court has heard encl 21 filed by the Proposed Intervener on 17 July 2023 and has dismissed it with the costs amounting to RM1,5000.00 subject to allocator fees.

[2] The Proposed Intervener does not belong to the group of people who have the right to claim property belonging to the deceased, based on the relevant provisions. The Proposed Intervener did not agree and has appealed against this decision. The parties are referred to as they were in the High court.

The Proceedings

[3] Enclosure 21 is filed for an order that:

(a) That the Pengkaveat / Bakal Pencelah be named as a party in this Originating Summons;

(b) The intitulement to be amended accordingly;

(c) Such further and other reliefs that the Honourable court deem fit and reasonable.

Cause Papers

[4] The relevant cause papers which had been filed before this court are as follows:

(a) Enclosure 1- Originating Summons (Ex-Parte)

(b) Enclosure 21 - Notice of Application to Intervene

(c) Enclosure 22 - Affidavit in Support

(d) Enclosure 23 - Affidavit in Reply Caveator

(e) Enclosure 25 - Affidavit Lim Lean Seng

(f) Enclosure 26 - Corrective Affidavit

(g) Enclosure 29 - Affidavit in Reply Caveator

(h) Enclosure 30 - Applicant's Written Submission

(i) Enclosure 34 - Hujahan Pengkaveat / Bakal Pencelah

Issue

[5] The main issue to be decided by this court is:

"Whether the Descendant of the Sibling who pre-deceased the Deceased is entitle to the Estate of the Deceased?"

Background Facts

[6] The Applicant had filed in the application for letter of administration (encl 1) on 17 March 2022 and the Proposed Intervener/Caveator entered caveat to hold on the application around April 2022.

[7] The Proposed Intervener/Caveator entered the caveat and filed in the intervention application based on the sole ground that his interest in the deceased estate is affected as he is the son of the pre-deceased brother of the deceased. However, it is undisputed that the proposed intervener's father (Loo Ah Pow) has pre-deceased the deceased, Loo Ah Huat at all material times.

[8] Both parties were applying ss 6(1)(c), 7(1) and 7(2) of the Distribution Act 1958 to the facts to argue whether the Proposed Intervener/Caveator has a direct interest in the estate of the said deceased and ought to be allowed to be heard.

Applicant's Submissions In Objecting Encl 21

[9] The Applicant submits that the current position of law is crystal clear that any issue/ descendant of the sibling who pre-deceased the deceased is not entitled to the deceased estate under the law.

[10] In the recent case of Gan Cheng Khuan v. Gan Kah Yang & Ors 2018 MarsdenLR 75 , the court of Appeal held that descendant of the brother and sister who predeceased the intestate will not entitle to the deceased's estate.

[11] The Respondent had tried to come under subsection 7(1) of the Distribution Act 1958.

Subsection (1) of the s 7 of the Distribution Act 1958 deals with trusts to be held for the issue of the intestate whereas Subsection 7(2) of the Distribution Act 1958 provides for trusts in favour of other classes of relatives of the intestate. Both subsections of s 7 of the Distribution Act 1958 specifically refer to s 6 of the Distribution Act 1958 which means that both ss 6 and 7 of the Distribution Act 1958 must be read together.

[12] It is not in dispute that the Respondents are not the issue of the intestate but are the nephews of the intestate which come within "othe