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2002 MarsdenLR 1185
RAMLY ALI
HIGH COURT (TEMERLOH)
IN THE ESTATE OF NGAU KEN LOCK (DECEASED) (NGAU VOON KIAT, PETITIONER) - Appellant
Versus
. - Respondents
PETITION NO 32–29 OF 2001
Decided On : 07/02/2002
Francis Tan ( Rosni Francis Tan & Ho) for the petitioner.
TH Goh ( Azhar & Co) for the applicant.
The case involves two applications in the estate of the late Dato’ Ngau Ken Lock, who died on 8 March 1978 leaving a will dated 16 June 1960 devising his properties in equal shares to his wife Ee Tian and five sons (Ngau Boon Ming, Ngau Boon Thai, Ngau Boon Kee, Ngau Boon Pin, and Ngau Boon Kit) (!) (!) (!) (!) (!) (!) (!) (!) . The executors (Ee Tian and Ngau Boon Ming) obtained probate; Ee Tian died in 1996, Ngau Boon Ming became sole administrator in 1997, and died on 2 July 2001 leaving the estate unadministered (!) . The petitioner (Ngau Voon Kiat, fifth son and beneficiary) seeks appointment as sole administrator de bonis non (encl 8, filed 28 September 2001) (!) . The applicant (Ngau Boon Pin, fourth son and beneficiary) seeks appointment as co-administrator with the petitioner (encl 14, filed 18 March 2002) (!) . All other beneficiaries or their representatives support the petitioner, oppose the applicant, and have renounced administration (!) (!) .
A grant de bonis non is for unadministered estate where prior representatives have died without full administration (!) (!) (!) (!) (!) (!) (!) . Under the Probate and Administration Act 1959, s 16, where executors die before full administration, letters with will annexed may go to the fittest person, with prior right to (i) universal/residuary legatees, (ii) their representatives, (iii) beneficiaries entitled as if intestate, etc. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) . Both parties fall under (iii) with equal priority, but the court has wide discretion under ss 16 and 30 to deem the fittest, considering all interested persons' rights and expediting economical administration (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
The court must decide between petitioner sole, applicant sole, or both as co-administrators, prioritizing majority beneficiaries' wishes, cooperation, and efficient administration (!) (!) (!) (!) . The applicant lacks majority support, has a minority interest (1/6 share), and evidence shows non-cooperation (e.g., ignored family efforts while in Australia) (!) (!) (!) (!) (!) . Appointing the applicant (sole or co-) risks discord and delay; the petitioner has full support and is fittest (!) (!) .
The petitioner's argument that no caveat (O 71 r 37 RHC) bars the application is rejected; the dispute falls under O 71 r 22 allowing summons, which was properly filed (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
Petition (encl 8) allowed; application (encl 14) dismissed, both with costs (!) (!) (!) .
(1) There are two applications before this court in the present proceedings namely:
(i) encl 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) encl 14, which is an application by the applicant to be appointed as a
co-administrator de bonis non jointly with the petitioner.
Background
(2) On 8 March 1978, the late Dato’ Ngau Ken Lock died and left a will dated 16 June 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 five 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 testamentary expenses. In other words, there are six beneficiaries to the said will, each will get ? of the deceased’s properties, in equal shares. Both the petitioner and the applicant are brothers, ie the fifth and fourth sons of the deceased and both of them are beneficiaries to the said will.
(3) The said executors, Ee Tian (f) and Ngau Boon Ming were granted a grant of probate to jointly administer the deceased’s estate. The said Ee Tian (f) died on 11 March 1996. After that, the other executor, Ngau Boon Ming became the sole administrator vide court order dated 19 June 1997. On 2 July 2001, the said sole administrator, Ngau Boon Ming died, leaving behind the estate of the late Dato’ Ngau Ken Lock not fully administered.
(4) On 28 September 2001, the present petitioner (who is the fifth son and one of the beneficiaries to the estate of the late Dato’ Ngau Ken Lock) filed the present petition (vide encl 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 March 2002, the applicant (who is the fourth son and also one of the beneficiaries of the same estate) filed the present application (vide encl 14), for him to be appointed as co-administrator of the said estate.
(5) The said Ee Tian (f) (died on 11 March 1996) is being represented by the administrator — Ow Yong Mok. Ng Boon Ming (died on 2 July 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 second son of the late Dato’ Ngau Ken Lock who had died on 7 April 1987) is being represented by the administrator — Chong Kim Yew @ Chong Mai. The third son of the late Dato’ Ngau Ken Lock, namely Ngau Boon Kee (who is also one of the beneficiaries) is still alive. All the beneficiaries or their administrators/representatives (except the applicant) have filed their respective affidavits to support the petition (vide encl 8) and to oppose the application (vide encl 14).
(6) The administrators/representatives of the first three beneficiaries as well as the fourth beneficiary, Ngau Boon Kee, have each also filed their respective renunciation to be appointed its administrator de bonis non.
(7) On 15 April 2002, the learned senior assistant registrar ordered that this matter be referred to the judge under O 71 r 38 of the Rules of the High Court 1980 (‘the 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 O 72 shall apply.
The law on administration de bonis non
(8) 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 th
