GLUP 4183

LAW OF SUCCESSION AND PROBATE

FIRST SEMESTER SESSION 2019/2020 (A191)

TUTORIAL 1

(CASE STUDY)

GAN CHENG KHUAN V. GAN KAH YANG & ORS [2018] 1 LNS 1501

NAME: NUR ADILLA BINTI ZAHARUDDIN

MATRIC NO.: 244341

DATE OF SUBMISSION: 17 OCTOBER 2019

FACTS OF THE CASE
The appellant is the administrator of the deceased estate (Gan Cheng Keong) dated on
2.6.2016 while the deceased had passed away on the 27.3.2009. The Respondents’ late father
Gan Cheng Yee is the eldest brother of the deceased who had predeceased on 27.1.1979. The
Appellant filed the application in the High Court for the court’s determination regarding the
distribution of the deceased’s estate.

The Appellant had filed an ex-parte Originating Summons (OS) which was
subsequently amended. The Interveners applied for leave and were granted leave to intervene
in the OS. The Interveners have filed an affidavit in opposition to the OS which excluded them
as beneficiaries under the estate of Gan Cheng Keong (deceased). The major issue that the
Appellant had argued in this case is pursuant to subsection 7(2) read together with subsection
6(1)(i) of the Distribution Act 1958(the Act). He had applied declaratory orders in the OS
regarding the issue of the brothers and sisters of the deceased living at the time of his death
would be entitled to the deceased's estate.

ISSUE

Whether the brothers and sisters of the deceased are the only person who entitled for the distribution
of the deceased’s estate?

JUDGEMENT

The learned Judicial Commissioner (JC) had concluded some of the orders in his judgement
which include the three interveners, being the issue of Cheng Yee are entitled to their respective shares
in the estate of the deceased under section 7(1) of the Distribution Act 1958. Besides, Cheng Yee’s
share in the estate of the deceased is not forfeited although he had predeceased the deceased, because
Cheng Yee had left issue namely the three interveners. Instead, section 6(1)(i) of the Act also concluded
that Soo Lian would be entitled to his respective share in the estate of the deceased.
ANALYSIS

The Appellant had claimed that the Judge had mistakenly decide in this case where he argued
that section 7(1) of Distribution Act shall be applied to the situations where the estate of an intestate is
directed to be held on trust for the issue of the intestate. However, the Respondents in this case are
nephews of the deceased which are not included as the issues based on the provision stated in this Act.
The Appellant also had submitted that judge had misinterpreting subsection 7(1) of the Act. The word
‘intestate’ in subsection 7(1) should be refers to the late father of the Respondents, Gan Cheng Yee
instead of the late Gan Cheng Keong.

On the other hand, the Respondents argued that the issues of a sibling who had predeceased are
entitled to the distribution pursuant to section 6(1)(i) and section 7 of the Act. It was submitted
that sections 6 and 7 of the Act are drawn from the English Administration of Estate Act 1925 (1925
Act), wherein, those sections are in pari materia with sections 46 and 47 of the 1925 Act. Based on
these provisions and the decisions in those jurisdictions, it can be concluded that the entitlement of
nephews and nieces is not dependant upon a brother or sister of the intestate surviving the intestate.
However, the sibling who had predeceased the intestate are entitled to the distribution under the estate
of their uncle.

CONCLUSION

In conclusion, according to section 6(1)(i) of the Distribution Act 1958, for the situation where
intestate dies leaving no spouse, issue or parents, the whole estate shall be held on trust for the following
persons living at the death of the intestate. It must follow the prescribed manner where firstly the estate
will be entitled for the brothers and sisters of the intestate and then will go for the grandparents and so
on. Based on this appeal, the father of the Respondents died on 27.1.1979 and was no longer living on
27.3.2009, at the death of the intestate. Therefore, the Respondents are not entitled for their late father’s
share in the estate of the intestate under section 6(1)(i) of the Act.

Both section 6 and 7 of this Act shall be read together. It is not in dispute that the Respondents
are not the issue of the intestate but are the nephews of the intestate which come within 'other classes
of relatives' of the intestate. If they are taking a share under their late father's entitlement in the estate
of the intestate under section 7 of the Act, they are prohibited to do so under section 6(1)(i) as these two
subsections are interrelated between each other. As a result of this appeal, the court had decided to allow
the appeal with no costs. The Order of the High Court dated 18.1.2018 in paragraphs 1 to 4 were set
aside and the Amended OS in prayers (a), (b), (c) and (d) were allowed. Deposit was refunded to the
Appellant.