The appointment of an administrator pendente lite under Section 19 PAA is justified in cases of ongoing disputes over wills to preserve the estate’s assets pending resolution.

S Nantha Balan JCA:

Introduction

[1] This is an appeal against the order of the learned High Court Judge ("the learned judge") dated 7 December 2018 ("the Order") in appointing an administrator pendente lite for the Estate of Tan Kirn Choo @ Tan Kim Choon ("the deceased"). On 30 January 2020 we unanimously dismissed the appeal. These are the reasons for our decision to dismiss the appeal.

[2] The appellants are Tan Boon Thien ("1st appellant") and his wife, Low Chow Yeng ("2nd appellant"). They were the 1st and 5th defendants respectively in the proceedings in the High Court. Tan Poh Lee (f) ("1st respondent"), Tan Poh Hui ("2nd respondent") and Tan Poh Yee ("3rd respondent") are the children of the deceased.

[3] The proceedings in the High Court is a "probate action" as defined by O 72 r 1(2) Rules of 2012 ("ROC"). As per the definition, a "probate action" is "an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious".

[4] By a notice of application dated 8 November 2018 ("encl 6"), the 1st respondent applied under s 19 of the Probate and Administration Act 1959 ("PAA") for the appointment of Mr Lim Tian Huat ("LTH") of Messrs Rodgers Reidy & Co (Chartered Accountants) as an administrator pendente lite for the Estate of the deceased.

[5] Section 19 PAA reads as follows:

Letters of administration pendente lite.

19. Pending any probate action, letters of administration may be granted to such person as the Court may appoint, limited so that the administrator shall not be empowered to distribute the estate, and shall be subject to such control by and direction of, the Court, as the Court deems fit; and subject to that limitation the administrator so appointed shall have all the rights and powers of a general administrator.

[6] In the present case, there is considerable litigation which is ongoing between the warring parties and a significant part of it pivots on the validity of an alleged Last Will and Testament of the deceased dated 8 June 2016 ("the impugned Will") and an alleged Deed of Gift dated 27 September 2016 ("the Deed") and Power of Attorney dated 27 September 2016 ("the PA"). There is no dispute that the deceased had previously executed a will dated 6 March 2008 ("the 2008 Will") which was prepared by Mr Chew Phye Keat, a partner of the legal firm of Messrs Raja Darryl & Loh and who has been described by the 1st respondent as the deceased's trusted family lawyer of 25 years.

[7] The validity of the 2008 Will is not disputed. The trust reposed by the deceased in Mr Chew Phye Keat may be gleaned from the fact he prepared the 2008 Will, witnessed its execution by the deceased and was also named as the executor and trustee for the Estate of the deceased.

[8] The primary dispute in the probate action is essentially in relation to the validity of the impugned Will, the Deed and the PA. However, the appellants' case is that although the deceased had initially executed the 2008 Will, he had subsequently executed the impugned Will wherein the 1st appellant was named as the sole executor. As such, the impugned Will superseded the 2008 Will. The sole beneficiaries of the impugned Will are the 1st and 2nd appellants. Thereafter, by way of the Deed, the deceased allegedly made an inter-vivos gift of shares, properties and monies in favour of the 1st appellant and 2nd appellant.

[9] The deceased died on 29 August 2018 in Bangkok, Thailand. There is a great deal of controversy pertaining to the deceased being taken by the appellants to Bangkok. The 1st respondent contends that the deceased was taken to Bangkok (by the appellants) so as to avoid a mental health assessment which was to be undertaken by the High Court in Kuala Lumpur.

[10] On 14 September 2018 the 1st appellant applied for probate based on the impugned Will an