JUDGMENTBY: JAMES FOONG J

Chong Swee Lin (the deceased) died on 21 February 1993 as a result of a motor accident in Genting Highlands. On 12 November 1993, the petitioner, claiming himself to be the lawful husband of the deceased, filed a petition for letters of administration to the deceaseds estate. A caveat was posted by one Chan Kok Leong (the respondent) against this petition and after a warning was issued, the respondent entered appearance. By this act, this petition is considered as contested under O 71 r 37(14) of the Rules of High Court 1980 (the RHC 1980). This case was duly referred to the judge of the High Court, who then ordered it to be disposed of summarily under the powers granted to him under O 71 r 38(1) of the RHC 1980.

In accordance with O 71 r 38(2) of the RHC 1980, this matter was heard in open court. Besides affidavits being referred to, the makers of these affidavits were also cross-examined. Included during this hearing with the consent of all parties were several other witnesses who tendered oral evidence.

From the evidence adduced, the respondent together with his sisters, Chan Suit Foong and Elizabeth Chang Loong Yoke (who were later added as the second and third respondents respectively) are children of the deceased. They claimed that the petitioner was never the lawful husband of the deceased and as such should not be entitled to be the administrator of the estate of the deceased. They being the lawful children should be made administrators.

In determining who will be a suitable administrator of a deceaseds estate, s 30 of the Probate and Administration Act 1959 provides as follows:

In granting administration the court shall have regard to the rights of

all persons interested in the estate of the deceased person or in the

proceeds of sale thereof, and, in particular, administration with the

will annexed may be granted to a devisee or legatee; and in regard to

land settled previously to the death of the deceased, and not by his

will, administration may be granted to the trustees of the settlement;

and any such administration may be limited in any way the court thinks

fit:

Provided that, where the deceased died wholly intestate as to his

estate, administration shall, if application is made for the purpose,

be granted to some one or more of the persons interested in the

residuary estate of the deceased, unless by reason of the insolvency of

the estate, or other special circumstances the court

thinks it expedient to grant administration to some other person.

By the above provision, inevitably for the purpose of this case, the person most suitable to be the administrator would be the beneficiary of the deceaseds estate. If the petitioner is the lawful husband, it is obvious that under the Distribution Act of 1958 he would be the sole beneficiary of the deceaseds estate, since the deceased died intestate. Being the sole beneficiary, he should be the appropriate person to be appointed administrator. On the other hand, if the petitioner is not the lawful husband then the respondents should be the administrators as they are persons interested in the residuary estate of the deceased, being once again beneficiaries. There is no contest on the relationship of the respondents with the deceased, for as from the evidence so far adduced, the petitioner has admitted that they are the deceasedd children. Therefore, the true issue of this whole case centered upon whether the petitioner was the lawful husband of the deceased.

The petitioner testified that he first met the deceased on Christmas Eve of 1976 at a night club where she was a singer. They got married on 2 January 1981 by way of a Chinese customary marriage ceremony. This involved the petitioner and the deceased hosting a dinner for three male friends of the petitioner and two female friends of the deceased at a Chinese restaurant in Jalan Peel, Kuala Lumpur. At t

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