RK Nathan J:

Facts

An ex parte originating summons was filed by HSBC (Malaysia) Trustee Berhad (the applicant) to determine a number of questions which arose in relation to an application for Letters of Administration de bonis non for the administration of the estate of one Ng Foo Chee (f) deceased.

The said Ng Foo Chee (f) died intestate on 12 November 1973. Letters of Administration in respect of the estate of Ng Foo Chee (the Grant of Ng Foo Chee) was granted on 8 October 1974 and it was issued to her husband, one Kong Siew Chong on 27 January 1977.

According to the Grant of Ng Foo Chee, the estate of Ng Foo Chee only comprised of a landed property held under title deed CT8853 (now known as Grant 11225), Lot 13 of Section 86A of the Town and District of Kuala Lumpur bearing the postal address No. 27, Jalan Pahang, 53000 Kuala Lumpur (the Property).

By virtue of s. 6(1)(i) of the Distribution Act 1958 on the death of Ng Foo Chee on 12 November 1973, one Kong Siew Chong (the deceased's husband) was the sole beneficiary of the estate of Ng Foo Chee. The said section reads as follows:

6(1) After the commencement of this Act, if any person shall die intestate as to any property to which he is beneficially entitled for an interest which does not cease on his death, such property or the proceeds thereof after payment thereout of the expenses of due administration shall, subject to the provisions of section 4, be distributed in the manner or be held on the trusts mentioned in this section, namely:

(i) If a woman die intestate leaving a husband, the whole of her estate shall go to him.

The property was then transferred and registered in the name of "Kong Siew Chong as representative". However, Kong Siew Chong died on 9 July 1990 before he could complete the transfer of the property into his own name. Kong Siew Chong, however, left a will dated 8 December 1986 (the Will). The Grant of Probate for the estate of Kong Siew Chong dated 9 April 1991 was issued to the applicant as the executor and sole trustee named in the Will.

Pursuant to cl. 2(d) of the Will, Kong Siew Chong instructed the applicant, as the executor of his estate, to hold the Property on trust for the benefit of his second wife, Wong Yoke Mooi, and to allow the said Wong Yoke Mooi to live and reside on the said Property during her lifetime, and that the said property be transferred to Selangor Tung Shin Hospital upon the demise of the said Wong Yoke Mooi.

However, as at 31 August 1997 (the effective date) the law in relation to the distribution of intestate estates as set out in s. 6(1)(i) to (iv) of the Distribution Act 1958 was amended by s. 3 of the Distribution (Amendment) Act 1997. The new s. 6(e) reads as follows:

(e) if an intestate dies leaving a spouse and issue but no parent or parents, the surviving spouse shall be entitled to one-third of the estate and the issue the remaining two-thirds.

In the course of discharging their duties pursuant to para. 2(d) of the Will, the applicant made an application to this court for the Grant of Letters of Administration de bonis non (the petition) in respect of the estate of Ng Foo Chee for the purpose of transferring the property into the name of the applicant as the executor of the estate of Kong Siew Chong. "De bonis non administratis" is the full Latin name for a special type of grant which is made to a representative to enable the administration of an estate to be completed where all the persons to whom a grant of probate or administration has been made have died without completing administration (see Williams, Mortimer and Sunnucks: Executors, Administrators and Probate (17th edn) at p. 337).

At the hearing of the said petition before the learned Deputy Registrar (DR), the DR took the view that the distribution of the property falls within the ambit of the Distribution (Amendment) Act 1997. Therefore, the DR was of the view that pursuant to the new s. 6(e) of the Distribution Act 1958, the applican