The requirement for administrators to extract Letters of Administration before initiating legal proceedings is a strict rule, subject to limited exceptions only if 'special circumstances' can be demonstrated.

Headnote:(A) Probate and Administration Act 1959 - Section 39(1) - Bankruptcy Notice - Requirement for Letters of Administration before instituting proceedings for the deceased estate. (Paras 1, 2, 5)

(B) Locus Standi - High Court held that administrators must extract Letters of Administration prior to legal action; exceptions requiring 'special circumstances' were noted. (Paras 2, 5, 12)

(C) The Federal Court's precedent emphasized that failure to extract the Letters before action results in lack of standing. (Paras 2, 12)

Facts of the case:
The appellant challenged a Bankruptcy Notice issued before Letters of Administration were extracted by the administrators of a deceased estate. The issue of locus standi regarding the bankruptcy proceedings and garnishment of the deceased's funds arose. The notice was filed before the appointment of the administrator. (Paras 1, 7, 9)

Findings of Court:
The Court determined that the Bankruptcy Notice was improperly issued due to the absence of requisite Letters of Administration. The 'special circumstances' doctrine was not applicable to the appellant's case. (Paras 12, 16)

Issues: The core issues were whether the appellant had locus standi to contest the Bankruptcy Notice and if the court of appeal's stay order affected the actions taken in the lower court. (Paras 8, 12)

Ratio Decidendi: The court ruled that strict adherence to the requirement of Letters of Administration is necessary; the general rule is that administrators must have the sealed order before engaging in legal proceedings. (Paras 12, 15)

Result: Appeal allowed, Bankruptcy Notice set aside.

JUDGMENT

Hamid Sultan Abu Backer JCA:

[1] The appellant (judgment debtor) appeals against the decision of the High Court which did not allow the appellant's appeal against the decision of the Senior Assistant Registrar (SAR) who refused to set aside the Bankruptcy Notice on the ground that when the Bankruptcy Notice was issued by the respondent as administrators of the deceased estate, the Letters of Administration was not extracted.

[2] The strict rule is that the Letters of Administration must be issued by the High Court to the administrator and/or administratrix before any action can be taken for the benefit of the estate. [See Janab's Key To Civil Procedure, 5th edn pp 143 and 144]. Some limited exceptions are found in O 15 r 6A of RC 2012. In Ang Hoi Yin v. Sim Sie Hau [1968] 1 MLRH 386; [1969] 2 MLJ 3, the plaintiff's administratrix brought an action against the defendant without having extracted the letters of administration even though it had been granted by the Court. The defendant entered a conditional appearance and applied to the Court to set aside the writ on the ground that the plaintiff had not acquired the locus standi yet. The Court held that since the plaintiff had not extracted the grant of letters of administration, she had no power to sue as administratrix and therefore the suit was a nullity and must be set aside.

The strict rule recently had been whittled down by the Federal Court to say if there are 'special circumstances' the administrator will have locus to proceed with the legal proceedings. [See Al Rashidy Kassim & Ors v. Rosman Roslan [2007] 1 MLRA 307; [2007] 4 MLJ 297; [2007] 3 CLJ 361]. This is notwithstanding the strict provision of s 39(1) of the Probate and Administration Act 1959 which states:

"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."

[3] It must be noted that the 'corporation' under s 39 means 'Official Administrator'. By virtue of s 39, the law vest the right to sue and be sued to the 'Official Administrator'. If anybody inter meddles with the estate of the deceased the 'Official Administrator' can be requested to take action. If he fails the interested parties can sue the 'de son tort' and also name the 'Official Administrator' as one of the defendants to obtain appropriate orders against the 'de son tort' in the presence the 'Official Administrator though the 'Official Administrator' cannot be sued for the liability of the estate, etc. [See Selvarajah & Anor v. Official Administrator & Anor [1977] 1 MLRH 494; [1978] 2 MLJ 108]. The Federal Court's decision of Al Rashidy did not at all discuss the section when by judicial fiat it had created exception to well established principles of Ingall v. Moran followed in Malaysia. In any event this Court is bound by the decision of the Federal Court notwithstanding the exception to the rule is against the intent and spirit of the statute. [See Jayasena v. R [1970] AC 618; Ingall v. Moran [1944] 1 KB 160].

[4] When 'special circumstances' are relied on the burden will be on the purported administrator to demonstrate on the issue of locus standi in the proceedings or by way of affidavits as the case may be before obtaining any orders from the Court. In essence, those who rely on special circumstances do not per se have a legal right such as administrator lawfully appointed by the Court, with the sealed order extracted.

[5] In light of Al Rashidy's case the courts will not ordinarily grant locus unless it can be shown that it was necessary and expedient to protect and preserve the interest of the deceased estate. In view of the statute which deals with Probate and Administration of Estates, the threshold for the purported administrator is very high to satisfy the locus standi test. It all depends on the facts, circumstances, urgency of the ma

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